Heymann v. Vmers

7ermont Superior Court
Filed 04/06/26
Washington Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 25-CV-03222
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org
Emily Heymann v. Vermont Municipal Employees Retirement System

ENTRY REGARDING MOTION
Title: Motion to Dismiss (Motion: 1)
Filer: Peter A. Sterling
Filed Date: September 26, 2025

The motion is GRANTED.

Plaintiff Emily Heymann, a municipal employee, who is entitled to participate in the
Vermont Municipal Employees Retirement System (VMERS), has filed the present Rule 75

appeal against VMERS. Ms. Heymann seeks review from the Court for two answers that
VMERS provided to her concerning her elected retirement program. VMERS has moved to
dismiss the claim on the basis that neither issue triggers the Court's limited authority under Rule

75, and that the Court is, by extension, without jurisdiction to consider the claims. As illustrated
by the analysis below, the Court agrees with VMERS, and the present matter is Dismissed
pursuant to V.R.C.P. 12(b)(6).
Standard of Review
To determine whether a complaint survives a motion to dismiss, the court assumes the
factual allegations in the complaint are true. Colby v. Umbrella, Inc., 2008 VT 20, 15. The

court will only grant the motion if there are no facts or circumstances that would grant plaintiff

relief. Id.; see also Wool v. Office of Professional Regulation, 2020 VT 44, 1 8. This is because
the purpose of a motion to dismiss for failure to state a claim is "to test the law of the claim, not

the facts which support it." Brigham v. State of Vermont, 2005 VT 105, q11 (quoting Powers v.

Office of Child Support, 173 Vt. 390, 395 (2002)); see also Levinsky v. Diamond, 140 Vt. 595,
600 (1982), overruled on other grounds in Muzzy v. State, 155 Vt. 279, (1990).

Legal Anaylsis
The first question in Ms. Heymann's complaint concerns her desire to switch retirement

plans from a defined contribution to a defined benefit. This is normally an election that
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employees make at the outset of their employment and cannot, by VMERS policy, subsequently
be changed.1 On March 25, 2025, Ms. Heymann wrote to VMERS requesting the ability to
change her plan from a Defined Contribution to a Defined Benefit Plan. She repeated this
request in an April 15, 2025 letter. VMERS responded on July 2, 2025 with a denial. Ms.
Heymann seek Rule 75 review of this denial under a theory of either mandamus or certiorari.
An action filed under V.R.C.P. 75 seeks “extraordinary relief” and must comply with the
Rule’s “narrow and exacting standards.” Ahern v. Mackey, 2007 VT 27, ¶¶ 7–8 (mem.); see also
Vermont State Employees’ Ass’n, Inc. v. Vermont Criminal Justice Training Council, 167 Vt.
191, 195 (1997) (noting that the trial court had “only a very limited standard of review to
determine whether there had been a clear and arbitrary abuse of authority” in the State’s
discretionary decision).
“The purpose of mandamus is generally to require a public official or body to perform a
simple ministerial duty imposed by law,” but it may include review of discretionary duties
“[w]here there appears, in some form, an arbitrary abuse of the power vested by law in an
administrative office . . . which amounts to a virtual refusal to act or to perform a duty imposed
by law.” Ahern, 2007 VT 27, at ¶ 8 (quoting Sagar v. Warren Selectboard, 170 Vt. 167, 171
(1999)). “Mandamus takes an official by the coat lapel and orders him to do what, up to that
moment, he has felt he had no right to do and was under no compulsion to do.” Rutland Cable T.
v. v. City of Rutland, 121 Vt. 399, 402 (1960).
In contrast, “[t]he purpose of certiorari is to review judicial or quasi-judicial action of a
lower court or tribunal in regard “to substantial questions of law affecting the merits or the case.”
Ahern, 2007 VT 27, at ¶ 8 (quoting Richards v. Town of Norwich, 169 Vt. 44, 48 (1999)).
In this case, the Court finds no basis for a certiorari review. The parties were not
engaged in a judicial or quasi-judicial process. Ms. Heymann asked VMERS to allow her to
change her retirement plan, and VMERS said no because it did not believe that it had the
authority. There is no claim that VMERS was obligated to have considered evidence, provided

1 Ms. Heymann contends in her complaint that there is a wrinkle in this policy in that a municipal employee can

leave one municipal employment, carry over her retirement, and in the course of starting a new municipal
employment, make a fresh election between plans. While Ms. Heymann’s statement does not cite to a particular rule
or policy, the Court will presume this wrinkle is true for the purposes of the present analysis. Richards v. Town of
Norwich, 169 Vt. 44 (1999) (noting that a court must assume all factual allegations contained in a complaint are true
for the purpose of reviewing a motion to dismiss).

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due process, or performed any of the other hallmarks of a judicial-type process. Ms. Heymann
made what can be characterized as an administrative request, and her attempt to re-cast it
otherwise are unavailing. See, e.g., Richards, 169 Vt. at 47 (detailing a quasi-judicial zoning
process that qualified because it called for evidence, allowed counsel, and resulted in a
considered decision).2
This leaves the Court with the question of whether Plaintiff is entitled to mandamus
review of her request and VMERS subsequent denial. In its motion to dismiss, VMERS points
to the lack of a “certain and clear legal duty” that would require VMERS to grant Ms.
Heymann’s request. Maple Run Unified School District v. Vermont Human Rights Commission,
2023 VT 63, ¶ 11.
Ms. Heymann contends that VMERS denial of her request was summary and never
examined or determined VMERS’ authority or the Board’s willingness to entertain her request.
This framework, however, put the onus on VMERS when it properly belongs on Ms. Heymann.
In her complaint and her briefing, Ms. Heymann has brought up two points that she contends are
inconsistent with VMERS’ position that it lacks authority. The first is that individuals who leave
municipal employment and return to municipal employment can make a new retirement plan
election at the time of re-hire, even though they are carrying over their prior retirement accounts.
The second is that the Vermont legislature previous granted a one-time switch for employees.
Ms. Heymann’s larger contention, that VMERS has the discretionary authority to consider such
requests, does not logically follow from these examples cited. Since one involves a new hire (of
an old employee) and the second, a legislative mandate, they are distinguishable from her present
request that effectively seeks VMERS to make a change because Ms. Heymann, midway through
her employment wants it. In neither her briefing, nor her complaint, does Ms. Heymann state the
clear and certain legal right that entitles her to this switch. Without this clear and certain right to

2 The case cited in Plaintif’s opposition brief seeking certiorari review are consistent with this conclusion.
In each
case, the issue under review is a quasi-judicial proceeding involving evidence, contested proceedings, counsel, and
due process. Hallsmith v. City of Montpelier, Dckt. No. 32-1-14 Wncv, 2014 WL 5795262 at *3 (Aug. 20, 2014)
(Toor, J.) aff’d 2015 VT 83 (reviewing due process considerations in a for cause public employment termination
proceeding); Gilmore Rd. LLC v. Town of Plymouth, Dckt. No. 563-8-08 Wrcv, 2009 WL 6557346, at *1 (Jan. 9,
2009) (Eaton, J.) (“The court concludes, however, that selectboards act in a quasi-judicial capacity when they grant
or deny an individual property owner's application for a driveway access permit.”).

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the action sought, there is no basis for Rule 75 relief. Maple Run Unified School District, 2023
VT 63, at ¶ 11.
Ms. Heymann attempts to elide this problem by arguing that her request and her current
appeal is not necessarily for a different outcome but simply for VMERS’ board to consider her
request, determine its authority, and vote on it, which it never did. See Rose v. Touchette, 2021
VT 77, ¶¶ 15–17 (granting Rule 75 review for an inmate challenges a disciplinary process, not
necessarily the outcome). Yet, this re-framing does not remove the obligation to identify a clear
and certain legal right or authority for the sought action. Even if the challenge is simply whether
the government entity should review the request, Rule 75 review begins by identifying the
statutory obligation or right compelling the government agency to act. See Maple Run Unified
School District, 2023 VT 63, at ¶ 17 (noting that the school’s obligation, as defined by statute,
was only to determine whether a complaint made a prima facie case).
In this case, Plaintiff has not identified the legal basis for why VMERS should have acted
on her request. She has made the argument that they could have acted, but for mandamus
review, there must be a basis compelling the officer or agency to take the action sought, even if
the action is simply to review and act on an application.
Without a legal basis for the sought review and vote, there is no mandamus relief
available as Plaintiff has not identified the basis for compelling VMERS or its board to consider
her request in some particular manner.
For these reasons, VMERS’ Motion to Dismiss is Granted for Count I of Plaintiff
Heymann’s complaint.
This brings the Court to Plaintiff’s second question that seeks to compel VMERS to
engage in rulemaking under the Vermont Administrative Procedures Act, 3 V.S.A. § 806. Under
this statute a person may submit a written request to an agency to adopt a procedural or rule, and
within 30 days, the Agency must either initiate rulemaking or deny the request giving its reasons
in writing. 3 V.S.A. § 806. In this case, that is precisely what happened. Ms. Heymann
requested VMERS to engage in rulemaking, and VMERS said no because VMERS does not
believe that its authority permits it to sanction the switching of retirement plans over the course
of any employee’s tenure.

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Ms. Heymann’s complaint expresses dissatisfaction with this response and a belief that it
is wrong, but neither Section 806, nor the other provisions of the Vermont Administrative
Procedures Act give her the right to appeal or to compel VMERS to reconsider her request.
Instead, Ms. Heymann’s only claim under this section would be a separate Rule 75 appeal
for mandamus, but the only right established under Section 806 is the right to have a request
either granted or denied in writing. In this respect, Ms. Heymann is not entitled to like or agree
with VMERS’ denial, but in providing the written denial, VMERS has fulfilled its obligation.
See Off. of Auditor of Accts. v. Off. of Att’y Gen., 2025 VT 36, ¶ 58 (affirming dismissal for
failure to state a mandamus claim where plaintiff received but disagreed with the style and
substance of a statutorily mandated opinion). As such, there is nothing to review or compel.
For this reason, Defendant’s Motion to Dismiss on Count II is Granted.
ORDER
Based on the foregoing, VMERS’ Motion to Dismiss is Granted as to both Counts, and
Plaintiff Heymann’s complaint is Dismissed pursuant to V.R.C.P. 12(b)(6) for a failure to state a
claim under either count.
Electronically signed on 4/6/2026 11:06 AM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge

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