Another chance in unemployment lawsuit scheduled for Monday

A second hearing in a lawsuit against West Virginia officials over the termination of pandemic-related unemployment benefits is scheduled for Monday.

Kanawha Circuit Judge Maryclaire Akers denied one procedural request from the plaintiffs, who were represented by the nonprofit law firm Mountain State Justice, on Thursday morning. But the plaintiffs will have another chance to make their case on Monday at 3 p.m., in Akers’ courtroom in the Charleston judicial annex.

Source: WV Center on Budget and Policy

Governor Jim Justice, saying that businesses were struggling to find workers, ended federal programs providing enhanced benefits, including $300 extra dollars per week, to unemployed workers affected by COVID-19 on June 19.  The enhanced benefits, part of the federal CARES Act, had also helped self-employed and gig workers, as well as those who had run out of benefits.

Last month,  Rebecca Urie, of Charleston, and Kimberly Griffith, of South Charleston, filed lawsuits in Kanawha County against Scott Adkins, Commissioner of Workforce West Virginia. Workforce West Virginia is the state agency that administers unemployment benefits.

Urie is a single mother supporting two children with autism, the lawsuit states. Griffith is a 56-year-old South Charleston woman. They are represented by Bren Pomponio and Laura Davidson, lawyers for the Charleston-based Mountain State Justice.

Justice, and Adkins, who had followed Justice’ orders, have not responded to requests for comment.

But in a response earlier this week, Adkins, represented by West Virginia Attorney General Patrick Morrisey, argued that Mountain State Justice had made procedural errors.

The plaintiffs asked the judge for a writ of mandamus and injunctive relief. According to West Virginia state law, an elected official “may be compelled to perform his or her duty by writ of mandamus.” They also asked for injunctive relief “to require the immediate continued administration” of benefits, and for a temporary restraining order.

Adkins argued that the law prohibits plaintiffs from filing simultaneous petitions for both a writ of mandamus and for injunctive relief.

Quoting another case (Backus v. Abbot), he wrote that “[w]hen the same relief sought by mandatory injunction in a suit in equity” can instead by sought by “a proceeding in mandamus, a court of equity is without jurisdiction to entertain such suit for injunctive relief.”

He also argued that the court doesn’t have the authority to force the state to enter into a new agreement with the federal government to provide enhanced unemployment benefits, since those benefits have already ended.

“I think it’s clear that injunctive relief here is not appropriate because the benefits have stopped,” Akers said, according to MetroNews.

In a phone call, Pomponio, explaining why he asked for multiple forms of relief, said some courts are unfamiliar with writs of mandamus.

“I was just trying to provide some flexibility,” he said.

Plaintiffs had argued that state law requires Adkins to secure “all advantages available” for unemployed workers. They pointed to West Virginia code 21A-2-16, which states:

“In the administration of this chapter the commissioner shall cooperate with the United States department of labor to the fullest extent consistent with the provisions of this chapter, and shall take such action through the adoption of appropriate rules, regulations, administrative methods and standards, as may be necessary to secure to this state and its citizens all advantages available under the provisions of the ‘Social Security Act’ which relate to unemployment compensation, the ‘Federal Unemployment Tax Act,’ the ‘Wagner-Peyser Act,’ and the ‘Federal-State Extended Unemployment Compensation Act of 1970.'”

Adkins essentially argued that West Virginia’s law does not say the commissioner must secure all benefits available under the CARES Act, which provided enhanced unemployment benefits. It mentions other federal laws instead, like the Social Security Act.

In the phone call, Pomponio noted that the CARES Act wasn’t enacted when the relevant law was written. He also argued that it was clear lawmakers wanted Workforce WV to “fully cooperate” with the federal government to get all benefits possible.

Adkins had countered that lawmakers could have amended the law to include the CARES Act if that was their intention.

Urie, who has provided updates about the lawsuit in a public Facebook group focused on problems with the state’s unemployment system, wrote Thursday that Akers’ decision was expected and encouraged others to “keep the faith.”

“It is NOT over,” she wrote. “We knew we would not get a restraining order to stop something that had already stopped. It is procedure.”

Adkins also argued that workers were making more on unemployment than pre-pandemic wages. However, the left-leaning West Virginia Center on Budget and Policy says that while state unemployment claims “have been dropping steadily throughout the year, they were actually decreasing faster when the $300 federal enhanced benefit was in place than they have been since ending the benefits.” They say Justice’ decision to terminate benefits may be hurting the economy.