Herzog v. Hawai'i Department of Labor and Industrial Relations

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-MAR-2025
07:56 AM
Dkt. 81 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

JOHN HERZOG, Appellant-Appellant, v.
HAWAIʻI DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS,
Appellee-Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Wadsworth and McCullen, JJ.)

Self-represented Appellant-Appellant John E. Herzog

appeals from the Circuit Court of the First Circuit's

(1) September 20, 2021 "Order Denying Appellant's Motion to

Strike Portion of Appellee's Brief and Record on Appeal, Filed

July 9, 2021" (September 20, 2021 Order Denying Motion to

Strike); (2) December 3, 2021 "Order Affirming Employment

Security Appeals Referees' Office's Decision in the Matter of

1902343 Dated September 30, 2019" (December 3, 2021 Order);
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

(3) December 3, 2021 Final Judgment; and (4) December 3, 2021

Notice of Entry of Judgment. 1 (Formatting altered.)

From June 25, 2018, to June 6, 2019, Herzog, a Hawai‘i

resident, worked for Virginia-based employer Dewberry & Davis,

Inc. (and its subsidiary, Dewberry Engineers) assisting with

disaster relief efforts in Puerto Rico. Dewberry "mobilized"

Herzog as part of its contract with the Federal Emergency

Management Agency (FEMA) to provide disaster assistance. Prior

to working for Dewberry, Herzog did not work for any other

employers in 2018.

On June 13, 2019, Herzog applied for unemployment

benefits in Hawai‘i; his claim was denied "because of

insufficient quarters and wages in base period." (Formatting

altered.) Herzog appealed the benefits denial to the Employment

Security Appeals Referees' Office (ESARO) on August 16, 2019.

Following a hearing, ESARO affirmed the denial. Herzog then

appealed to the circuit court, which affirmed ESARO's decision.

Herzog appeals to this court, raising five points of

error. Our review of "decision[s] made by the circuit court

upon its review of an agency's decision is a secondary appeal."

Flores v. Bd. of Land & Nat. Res., 143 Hawai‘i 114, 120, 424 P.3d

469, 475 (2018) (citations omitted). We apply the standards set

1 The Honorable James H. Ashford presided.

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forth in Hawai‘i Revised Statutes (HRS) § 91-14(g) (2012 &

Supp. 2016) to determine whether the circuit court's decision

was right or wrong. Id. at 120-21, 424 P.3d at 475-76

(citations omitted).

Upon careful review of the record and the briefs

submitted by the parties, and having given due consideration to

the issues raised and the arguments advanced, we resolve this

appeal as discussed below and affirm.

(1) Herzog's first and fourth points of error are

related. In his first point of error, Herzog contends the

circuit court erred when it "erroneously found that [he] did not

have wages and was not employed . . . by wrongly applying and

concluding on waived law and facts upon the definition of

'employment' in HRS 382-2(d) [(2015)] and by proxy concluding

and relying upon HRS 383-29(a)(5)(C) [(2015)] and HAR 12-5-99."

Herzog makes similar contentions in his fourth point of error. 2

ESARO determined that Herzog had "insufficient wages

to establish a valid Hawaii claim for unemployment benefits

pursuant to [HRS] § 383-29(a)(5)(C) based on a benefit year

beginning June 9, 2019." The circuit court ruled there was no

2 Although not a point of error raised, Herzog argues that there are
other ways Hawai‘i residents should be paid benefits through interstate
compact agreements. We deem this argument waived. Hawai‘i Rules of Appellate
Procedure Rule 28(b)(4).

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error in ESARO's conclusion based on HRS § 383-29(a)(5)(C) and

that Herzog was not employed under HRS § 383-2(d).

HRS § 383-29(a)(5)(C) provides for unemployment

benefits where an individual was employed as defined in

HRS § 383-2:

(a) An unemployed individual shall be eligible to receive
benefits with respect to any week only if the
department finds that:

. . . .

(5) In the case of an individual whose benefit year
begins:

. . . .

(C) After January 4, 1992, the individual has
been employed, as defined in section 383-2,
and has been paid wages for insured work
during the individual's base period in an
amount equal to not less than twenty-six
times the individual's weekly benefit
amount, as determined under section 383-
22(b), and the individual has been paid
wages for insured work during at least two
quarters of the individual's base period;
provided that no otherwise eligible
individual who established a prior benefit
year under this chapter or the unemployment
compensation law of any other state, shall
be eligible to receive benefits in a
succeeding benefit year until, during the
period following the beginning of the prior
benefit year, that individual worked in
covered employment for which wages were paid
in an amount equal to at least five times
the weekly benefit amount established for
that individual in the succeeding benefit
year.

HRS § 383-29(a)(5)(C) (formatting altered; emphasis added).

Relatedly, HRS § 383-2(d) provides, in part, that employment

includes service performed within the United States if "[t]he

service is not covered under the unemployment compensation law

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of any other state" and "[t]he place from which the service is

directed or controlled is in this State."

Here, Herzog testified that "all the

employers/employees in Puerto Rico received day-to-day and

ongoing direction of management from FEMA in Puerto Rico. They

were under the absolute control of FEMA at all times, subjected

to all of FEMA's employment conditions." Because Herzog's

service was directed or controlled in Puerto Rico, and not

Hawai‘i, he was not employed as defined by HRS § 383-2(d) to be

eligible for benefits under HRS § 383-29(a)(5)(C).

Thus, the circuit court did not err in affirming

ESARO's determination that Herzog was ineligible for

unemployment benefits in Hawai‘i.

(2) Herzog's second and third points of error are

also related. Herzog appears to contend his due process rights

were violated because the circuit court refused "to strike

Dkt. 26, pg. 59" and used this document in rendering its

decision. The document at "Dkt. 26, pg. 59" is the Unemployment

Insurance Division's Claim Summary.

Due process "calls for such procedural protections as

the particular situation demands" and requires "notice and an

opportunity to be heard at a meaningful time and in a meaningful

manner." Casumpang v. ILWU Loc. 142, 108 Hawai‘i 411, 423-24,

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121 P.3d 391, 403-04 (2005) (internal quotation marks, citation,

and brackets omitted).

At the beginning of the ESARO hearing, the hearing

officer asked Herzog if he reviewed the documents uploaded

electronically for the hearing, and Herzog responded in the

affirmative. The hearing officer then went through each

exhibit, including the Claim Summary. After identifying the

exhibits, the hearing officer asked, "Do you have any objection

to the documents, Mr. Herzog?" Herzog replied, "No." With

that, the hearing officer stated "the documents [were] being

entered as part of the record."

Because the hearing officer confirmed Herzog had

examined the uploaded documents prior to the hearing and

afforded Herzog ample opportunity to inspect, explain, and rebut

documents entered into evidence, Herzog was not denied due

process.

(3) Herzog's final point of error challenges the

circuit court's decision to not "sanction[] [Hawaiʻi Department

of Labor and Industrial Relations (DLIR)]/ESARO for their

abusive delays, [and] the [deputy attorney general] for her

intentional misrepresentations to the Court[.]"

"A trial court's decision as to whether to impose

sanctions is . . . 'due a substantial degree of deference,' and

it will generally be upheld unless it 'exceeds the bounds of

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reason, all of the circumstances before it being considered.'"

Deutsche Bank Nat'l Tr. Co. v. Greenspon, 143 Hawai‘i 237, 244-

45, 428 P.3d 749, 756-57 (2018) (citations omitted).

The circuit court stated it did "not have a problem

with [DLIR's] brief, at least in response to what Mr. Herzog

[had] presented so far." The court "[found] adequate citations

to the record. [It did] not see inaccurate or misleading

citations." Nor did the court "find at this point that [DLIR]

is misleading the court."

We cannot say the court abused its discretion by

declining to sanction DLIR/ESARO.

Based on the foregoing, we affirm the circuit court's

(1) September 20, 2021 Order Denying Motion to Strike;

(2) December 3, 2021 Order; and (3) December 3, 2021 Final

Judgment.

DATED: Honolulu, Hawai‘i, March 18, 2025.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
John E. Herzog,
Appellant-Appellant, pro se. /s/ Clyde J. Wadsworth
Associate Judge
Doris Dvonch,
Deputy Attorney General, /s/ Sonja M.P. McCullen
for Appellee-Appellee. Associate Judge

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