Virginia Lawyers Weekly VA Lawyers Weekly
Where appellant argues the Virginia Employment Commission wrongful denied him unemployment benefits after erroneously concluding that he was discharged for misconduct, the merits of most of his 30 assignments of error cannot be reached either because he has not adequately briefed them or the court lacks jurisdiction.
Legal standard
“Rule 5A:20(e) provides that the opening brief ‘must’ contain ‘[t]he standard of review and the argument (including principles of law and authorities) relating to each assignment of error.’ …
“If we find ‘a party’s failure to strictly adhere to the requirements of Rule 5A:20(e) is significant,’ this Court may treat the question as waived.”
Discussion
“Doe provides absolutely no argument, analysis, or legal authority for assignments of error 13, 15, 27, and 30. His brief lacks even conclusory statements relating to these issues. This is insufficient under Rule 5A:20(e). …
“In relation to assignments of error 2, 3, 10, 11, 12, 18, 21, 23, 25, 26, 28, and 29, Doe does not provide any argument or legal authority in the argument section of his brief. Below these assignments of error in the assignment of error section of the brief, he does make brief statements.
“These statements, however, are merely conclusory. … ‘When a party believes the circuit court erred, it is the duty of that party to present that error to us with legal authority to support their contention.’ …
“For most of his assignments of error, Doe did not do so. We find that his failure to comply with Rule 5A:20(e) for each of the listed assignments of error is significant, and those assignments of error are waived.”
Particular assignments
“Below assignment of error 1, Doe makes passing reference to Rule 3:8. But he does not explain how the Commission’s answer failed to comply with the cited rule (either there or in the argument section of his brief), and he does not make any argument beyond conclusory statements. …
“Doe does have a specific heading in the argument section of his brief relating to assignment of error 6. In the first sentence, he sets out a legal principle and legal authority. The second sentence, however, cuts off mid-sentence before he provides any argument or legal analysis about how the legal principle applies to the facts of the case. There is no further argument. …
“For assignment of error 17, Doe does have two subsections in the argument section of his brief relating to his bias allegations. … These subsections, however, do not set out any legal principles or legal authority. … Nor does he explain why [the commission’s] acts are examples of bias. As such, these arguments are insufficient under Rule 5A:20(e).”
In assignments of error 4 and 5, Doe argues errors alleged made by the commission. However, “[i]t is the circuit court that has jurisdiction to review the actions of the Commission, and this Court then reviews the decisions of the circuit court.”
In assignment of error 24, Doe argues the “Commission’s process for obtaining witnesses and document subpoenas as enacted to be unconstitutional. … His argument on brief, however, does not challenge the face of the regulation at issue[.] …
“Rather, Doe argues that the Commission’s application of the regulation is unconstitutional as a violation of due process. Facial challenges and as applied challenges are not the same. … Thus, his assignment of error does not encompass the argument he makes on brief.”
On the merits
In assignment of error 19, “Contrary to Doe’s claims, the VEC employee did not tell Doe that depositions are not permitted. The employee told Doe that Doe could depose witnesses if he could convince them to agree to it.
“The employee explained, however, that the VEC’s subpoena power extended only to compelling witnesses to attend a hearing. Thus, the employee did not lie; he was relying on a different part of the regulation governing the VEC’s subpoena authority. Accordingly, the circuit court did not err.’”
In assignments of error 7, 14 and 22, Doe “contends that the circuit court should have allowed him to present evidence of extrinsic fraud committed by the employer, and he also argues that he was entitled to an evidentiary hearing to present evidence of procedural irregularities and intrinsic fraud committed by the VEC. …
“Doe did not expressly allege fraud against the employer in his petition for review to the circuit court. Nor did he allege that the Commission’s decision was procured by extrinsic fraud committed by the party. …
“Assuming without deciding that Doe’s allegation against the employer is sufficient, Doe has not met the other requirements set out in [Jones v. Willard, 224 Va. 602 (1983)]. …Doe did not submit with his ‘petition a proffer of proof, verified by affidavits of witnesses.’ …
“Jones does not provide an unqualified right to remand upon a mere allegation of fraud on the part of the employer. The proffer is required for the circuit court to assess whether the proffer is ‘sufficient as a matter of law to establish a prima facie case of such fraud.’ … Without the proffer of proof, the circuit court could not make such a determination.”
Doe argues the VEC committed fraud, but his “petition for judicial review did not plead fraud with sufficient specificity. Further he did not “argue fraud to the circuit court.”
In assignments of error 8 and 9, Doe argues there was insufficient evidence for the commission to conclude he had been fired for misconduct.
However, “the record is sufficient to demonstrate that Doe refused to obey a reasonable directive of his employer. …
In assignment of error 16, Doe claims the trial court should have admitted Exhibit 12 into evidence. However, Doe never provided the document to the circuit court.
In assignment of error 20, Doe alleges the VEC attorney committed misconduct, but he did not lodge a contemporaneous objection.
Affirmed.
Doe v. Virginia Employment Comm’n, Record No. 0734-21-4, July 26, 2022. CAV (AtLee Jr.) From the Circuit Court of Arlington County (Wheat) John Doe, pro se. Elizabeth B. Peay, Mark R. Herring, Donald D. Anderson, Heather Hays Lockerman, for appellee Virginia Employment Commission, No brief or argument for appellees Aces Group LLC and Insperity PEO Services . VLW 022-7-286, 26 pp. Unpublished opinion.
