NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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1902343 Dated September 30, 2019" (December 3, 2021 Order); NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER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