Electronically Filed

Supreme Court
SCPW-20-0000583
28-SEP-2020
03:13 PM

SCPW-_____________

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

GREGORIO NGIRAIWET, MAYA V. ORIGINAL PROCEEDINGS

IRIONDO SIMEK and NATHAN
PLOESSER, on behalf of themselves and all
other similarly situated individuals,

Petitioners,

vs.

DAVID IGE, Governor, State of Hawaii;

ANNE E. PERREIRA-EUSTAQUÍO,
Director, State of Hawaii, Department of
Labor and Industrial Relations,

Respondents.

PETITION FOR EXTRAORDINARY WRIT

PURSUANT TO HRS SECTIONS 602-4, 602-5(5), AND 602-5(6)
AND/OR FOR WRIT OF MANDAMUS

DECLARATION OF GREGORIO NGIRAIWET

DECLARATION OF INEZ VALESQUEZ

DECLARATION OF TAMMIE EVANGELISTA

DECLARATION OF MELISSA NUNES

DECLARATION OF MAYA V. IRIONDO SIMEK

 DECLARATION OF NATHAN PLOESSER

DECLARATION OF BRANDY GARCIA

DECLARATION OF JORDAN N. FITE

DECLARATION OF DARLETHA ANDREWS

DECLARATION OF CASSIE MILLAR

DECLARATION OF SHANDA LUCKEY

DECLARATION OF MARIA OLIVRY

DECLARATION OF CELESTE WILLIAMS

DECLARATION OF SUSAN TAI MARTIN

DECLARATION OF CONSTANCE FAIRBANKS

DECLARATION OF JANELLE FREEMAN

DECLARATION OF ALICIA TOTTEN

DECLARATION OF CATHY FUKUNAGA

DECLARATION OF LORI KNIGHT

DECLARATION OF GAEL REUSS

PAUL ALSTON 1126

J. BLAINE ROGERS 8606

DENTONS US LLP
1001 Bishop Street, Suite 1800
Honolulu, Hawaii 96813-3689
Telephone: (808) 524-1800
Facsimile: (808) 524-4591
E-mail: paul.alston@dentons.com
blaine.rogers@dentons.com

Attorneys for Petitioners

GREGORIO NGIRAIWET, MAYA V. IRIONDO
SIMEK and NATHAN PLOESSER, on behalf of
themselves and all other similarly situated
individuals

-2-
 SCPW-_____________

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

GREGORIO NGIRAIWET, MAYA V. ORIGINAL PROCEEDINGS

IRIONDO SIMEK and NATHAN
PLOESSER, on behalf of themselves and all
other similarly situated individuals,

Petitioners,

vs.

DAVID IGE, Governor, State of Hawaii;

ANNE E. PERREIRA-EUSTAQUÍO,
Director, State of Hawaii, Department of
Labor and Industrial Relations,

Respondents.
 TABLE OF CONTENTS

I. STATEMENT OF FACTS ................................................................................................. 2

A. COVID-19 Global Pandemic .................................................................................. 2

B. Economic Crisis Caused By COVID-19................................................................. 3

C. Failure Of Hawaii’s Unemployment Division In A Time Of Dire Need ............... 4

D. Petitioners Have Suffered Irreparable Injury .......................................................... 9

1. Petitioners Have Received No Response from DLIR Regarding

their Claims ............................................................................................... 10

2. Petitioners’ Claims Remain Unresolved ................................................... 11

3. Petitioners’ Claims Have Been Erroneously Determined and

Significantly and Inexplicably Delayed .................................................... 13

4. Unemployment Claims by Hawaiʻi Teachers are being Improperly

Denied ....................................................................................................... 14

5. DLIR’s Untimely and Erroneous Claims Determinations Will

Further Harm Petitioners by Depriving Them of Federal Lost
Wages Assistance...................................................................................... 17

II. STATEMENT OF JURISDICTION................................................................................. 18

III. STATEMENT OF ISSUES PRESENTED AND RELIEF SOUGHT ............................. 20

IV. STATEMENT OF REASONS FOR ISSUING THE WRIT ............................................ 20

A. Haw. Admin. R. 12-5-89(c) Confers A Mandatory Duty, Obligating The

DLIR To Promptly Issue Unemployment Benefits .............................................. 21

B. Writ Intervention Is Necessary Because Petitioners Have No Alternative

Means To Redress The State’s Failure To Discharge Its Mandatory
Obligation Under Haw. Admin. R. 12-5-89(c) ..................................................... 29

C. The DLIR Must Be Compelled To Act In Light Of An Escalating

Unemployment Crisis That Is Imminently Damaging The Health, Safety,
And Welfare Of Hawaii’s Jobless......................................................................... 32

V. CONCLUSION ................................................................................................................. 35
 TABLE OF AUTHORITIES

Page(s)

Cases

Ainoa v. Unemployment Comp. Appeals Div.,

62 Haw. 286, 614 P.2d 380 (1980) ..........................................................................................28

Bank of Hawai‘i v. Davis Radio Sales & Serv., Inc.,

6 Haw. App. 469, 727 P.2d 419 (1986) ...................................................................................30

Barnett v. Broderick,
84 Hawai‘i 109, 929 P.2d 1359 (1996) ........................................................................18, 19, 28

Brotherton v. Moore,
159 W.Va. 934, 230 S.E.2d 638 (1976) ...................................................................................22

California Department of Human Resources Development v. Java,

402 U.S. 121 ......................................................................................................................24, 28

Camara v. Agsalud,
67 Haw. 212, 685 P.2d 794 (1984) ..........................................................................................27

Coon v. City & Cty. of Honolulu,

98 Haw. 233, 47 P.3d 348 (2002) ......................................................................................26, 27

In re Disciplinary Bd. Of Hawaii Supreme Court,

91 Hawai‘i 363, 984 P.2d 688 (1999) ......................................................................................21

In Re Edward J. Carvelo,
44 Haw. 31, 352 P.2d 616 (1959) ............................................................................................19

Forgay v. Conrad,
47 U.S. 201 (1848) ...................................................................................................................30

Fukida v. Hon/Hawai‘i Service and Repair,

97 Hawai‘i 38 (2001) ...............................................................................................................23

Fusari v. Steinberg,
419 U.S. 379 (1975) .................................................................................................................24

Goldberg v. Kelly,
397 U.S. 254 (1970) .............................................................................................................2, 21

Gray v. Admin. Dir. of the Court,

84 Hawai‘i 138, 931 P.2d 580 (1997) ......................................................................................25

i
Hanabusa v. Lingle,
119 Hawai‘i 341 (2008) .....................................................................................................22, 23

Kema v. Gaddis,
91 Hawai‘i 200, 982 P.2d 334 (1999) ................................................................................18, 20

KNG Corp. v. Kim,

107 Hawai‘i 73 .........................................................................................................................30

Lambert v. Teisina,
131 Hawai‘i 457 (2014) ...........................................................................................................30

Malahoff v. Saito,
111 Hawai‘i 168, 140 P.3d 401 (2006) ....................................................................................26

State ex rel. Marsland v. Shintaku,

64 Haw. 307 (1982) .................................................................................................................20

State ex rel. McClung v. Fukushima,

53 Haw. 295 (1972) .................................................................................................................19

Morganelli v. Casey,
166 Pa.Cmwlth. 574, 646 A.2d 744 (1994) .............................................................................22

Narmore v. Kawafuchi,
112 Hawai‘i 69, 143 P.3d 1271 (2006) ....................................................................................25

Penn v. Transportation Lease Hawai‘i, Ltd.,

2 Haw. App. 272, 630 P.2d 646 (1981) ...................................................................................30

Pennington v. Didrickson,
22 F.3d 1376 (7th Cir. 1994) ...................................................................................................24

Perry v. Planning Comm’n of Hawaii County,

62 Haw. 666, 619 P.2d 95 (1980) ......................................................................................25, 26

Salling v. Moon,
76 Hawai‘i 273, 874 P.2d 1098 (1994) ....................................................................................21

State v. Araki,
82 Haw. 474, 923 P.2d 891 (1996) ..........................................................................................23

State v. Dudoit,
90 Hawai‘i 262, 978 P.2d 700 (1999) ......................................................................................25

Territory v. Hayes,
42 Haw. 1 (1957) .....................................................................................................................19

ii
Trumka v. Moore,
180 W.Va. 284, 376 S.E.2d 178 (1988) ...................................................................................22

Voellmy v. Broderick,
91 Hawai‘i 125, 980 P.2d 999 (App.1999) ..............................................................................25

Statutes

42 U.S.C. § 503 ........................................................................................................................28, 35

CARES Act, PL 116-136, March 27, 2020, 134 Stat 281 .............................................................27

HRS § 602-4 ..............................................................................................................................2, 19

HRS § 383-29 ..................................................................................................................................5

HRS § 383-30 ..............................................................................................................................5, 6

HRS § 383-34 ..................................................................................................................................6

HRS § 383-40 ..................................................................................................................................5

HRS § 383-65 ..................................................................................................................................6

HRS §§ 304A .................................................................................................................................22

HRS § 602-5 ..................................................................................................................................19

HRS § 659-1 ..................................................................................................................................19

Other Authorities

20 CFR 640.3(a).............................................................................................................................24

Haw. Admin. R. § 12-5-89.....................................................................2, 20, 21, 22, 23, 26, 28, 29

Hawaiʻi Constitution, Article I ........................................................................................................2

Hawai‘i Constitution, Article X .....................................................................................................22

Hawai‘i Rules of Appellate Procedure Rule 21 ...............................................................................2

iii
 PETITION FOR EXTRAORDINARY WRIT
PURSUANT TO HRS §§ 602-4, 602-5(5), AND 602-5(6)
AND/OR FOR WRIT OF MANDAMUS

Petitioners Gregorio Ngiraiwet, Maya V. Iriondo Simek and Nathan Ploesser, individually

and on behalf of all other similarly situated individuals (“Petitioners”), by and through counsel,

hereby petition this Honorable Court for an Order granting an Extraordinary Writ and/or a Writ of

Mandamus directing Respondents David Y. Ige, Governor, State of Hawaiʻi, and Anne E. Perreira-

Eustaquío, Director, State of Hawaiʻi Department of Labor and Industrial Relations (“DLIR”), to

promptly pay unemployment insurance (“UI”) and Federal Pandemic Unemployment Assistance

(“PUA”) benefits1 to thousands of current and former Hawaiʻi residents rendered jobless by

COVID-19. Hawaiʻi is suffering from a financial crisis of unimaginable proportion, with the

economy at a standstill for over six months because of public health restrictions necessary to slow

the spread of the virus. These measures, however, have resulted in record unemployment, with

nearly a quarter of Hawaii’s population unemployed as of May 2020.

These individuals are facing financial and emotional hardship and, in many cases,

destitution. But over half a year into the pandemic, thousands of them continue to be failed by the

inability of the DLIR to timely process, resolve, and, most importantly, pay benefits to the citizens

whose interests it is supposed to serve.

Petitioners, and the other declarants offered in support of this Petition are but a handful of

the thousands of individuals whose requests for unemployment benefits remain unpaid,

unresolved, ignored, and stuck in an endless cycle of unanswered pleas for help and administrative

1
PUA benefits are available under the federal government’s CARES Act to individuals who do
not qualify for traditional unemployment benefits. COVID-19 Pandemic Unemployment
Assistance, https://labor.hawaii.gov/pua/.

1
backlog. Given the gravity and social and economic importance of this situation, writ relief is not

only necessary, but critical. This Court is requested to intervene and issue a writ of mandamus,

directing immediate action by the DLIR to comply with its legal duty to assist unemployed of

Hawaiʻi by promptly paying unemployment benefits as proscribed by regulation—specifically,

Haw. Admin. R. 12-5-89(c), (e).

This Petition is made pursuant to §§ 602-4, 602-5(5), 602-5(6), and 602-5(3) of the Hawai‘i

Revised Statutes (“HRS”); Rule 21 of the Hawai‘i Rules of Appellate Procedure (“HRAP”); the

Fourteenth Amendment to the U.S. Constitution; and article I, sections 5 and 10 to the Hawaiʻi

Constitution, Goldberg v. Kelly, 397 U.S. 254, 261-62 & n.8 (1970) (finding that the termination

of an entitlement created by statute “involves state action that adjudicates important rights” and

stating that welfare benefits are “more like ‘property’ than a ‘gratuity’ ”), and is supported by the

Statement of Reasons and Memorandum of Points and Authorities herein.

I.

STATEMENT OF FACTS

A. COVID-19 Global Pandemic

On March 11, 2020, the World Health Organization (“WHO”) declared a global COVID-

19 pandemic.2 Citing “deep[] concern[] both by the alarming levels of spread and severity, and by

the alarming levels of inaction,” it called for countries to take “urgent and aggressive action.” 3 As

of September 13, 2020, the Center for Disease Control reported 6,467,481 total cases of COVID-

2
World Health Organization, WHO Director-General’s Opening Remarks (March 11, 2020),
https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-
mediabriefing-on-covid-19---11-march-2020.
3
Id.

2
19 in the United States—with an increase of 40,423 from the day prior. 4 COVID-19 has caused

over 200,000 deaths in the United States to date.5 Due to the grave and serious nature of COVID-

19 and the threat to human life, Hawaiʻi Governor David Ige and all four county mayors in

Hawaiʻi, imposed a state of emergency and issued rules, orders, and restrictions upon the daily

activities of residents and businesses.6

B. Economic Crisis Caused By COVID-19

COVID-19 proved to be not just a global pandemic and public health crisis. It also

spawned a global economic crisis, causing a record rise in the unemployment rate in the United

4
Cases in the U.S., Ctrs. for Disease Control & Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html.
5
CDC COVID Data Tracker, Ctrs. for Disease Control & Prevention,
https://covid.cdc.gov/covid-data-
tracker/?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-
ncov%2Fcases-updates%2Fcases-in-us.html#cases_totaldeaths.
6
See, e.g., COVID-19 Emergency Proclamation, Office of the Governor, State of Hawai‘i (Mar.
4, 2020), https://governor.hawaii.gov/wp-content/uploads/2020/03/2003020-GOV-
EmergencyProclamation_COVID-19.pdf; Supplementary Proclamation, Office of the Governor,
State of Hawaii (Mar. 16, 2020), https://governor.hawaii.gov/wp-
content/uploads/2020/03/2003109- ATG_COVID-19-Supplementary-Proclamation-signed.pdf;
Second Supplementary Proclamation, Office of the Governor, State of Hawaii (Mar. 21, 2020),
https://governor.hawaii.gov/wp-content/uploads/2020/03/2003152-ATG_SecondSupplementary-
Proclamation-for-COVID-19-signed.pdf; Third Supplementary Proclamation, Office of the
Governor, State of Hawaii (Mar. 23, 2020),
https://governor.hawaii.gov/wpcontent/uploads/2020/03/2003162-ATG_Third-Supplementary-
Proclamation-for-COVID-19-signed.pdf; Public Health Emergency Rules, Amended March 22,
2020, Office of the Mayor, County of Maui (Mar. 22, 2020),
https://www.mauicounty.gov/DocumentCenter/View/121462/Amended-2020-3-22-
MayorsPublic-Health-Emergency-Rules; Mayor’s Emergency Rule #5, Office of the Mayor,
County of Kaua‘i (Mar. 24, 2020),
https://www.kauai.gov/Portals/0/Civil_Defense/EmergencyProclamations/Mayor%27s%20Emer
gency%20Rule%20%235_20200324.pdf; Mayor’s COVID-19 Second Supplementary
Emergency Proclamation, Office of the Mayor, County of Hawaiʻi (Mar. 24, 2020),
https://www.hawaiicounty.gov/Home/Components/News/News/1177/720.

3
States to 14.7 percent in April 2020.7 Public health officials and infectious diseases experts warned

the American public to stay home and avoid close contact with others as much as possible. 8 The

threat posed by COVID-19 affected virtually all industries, including professional sports,

academia, retail, and hospitality, and caused thousands of Americans to find themselves jobless. 9

It was not long before these COVID-19 restrictions and business closures caused serious economic

peril to residents of all states across the United States.

C. Failure Of Hawaii’s Unemployment Division In A Time Of Dire Need

Hawaiʻi is a state with a large tourism-dependent workforce. As COVID-19 decimated the

travel, tourism, and the airline industries, Hawaiʻi was hit especially hard.10 Business closures

caused thousands of residents to lose their jobs and income. With the unemployment rate at 22.3%

in April and 23.5% in May, Hawaiʻi had the third highest unemployment rate in the county. 11 By

7
Unemployment rate rises to record high 14.7 percent in April 2020, U.S. Bureau of Labor
Statistics, May 13, 2020, https://www.bls.gov/opub/ted/2020/unemployment-rate-rises-to-record-
high-14-point-7-percent-in-april-2020.htm?view_full.
8
COVID-19: Impact on Employment and Labor, National Conference of State Legislatures, May
13, 2020, https://www.ncsl.org/research/labor-and-employment/covid-19-impact-on-
employment-and-labor.aspx.
9
Id.
10
Kim Mackrael, Coronavirus Hits Hawaii’s Tourism-Dependent Workforce Hard, THE WALL
STREET JOURNAL, May 4, 2020; https://www.wsj.com/articles/coronavirus-hits-hawaiis-tourism-
dependent-workforce-hard-11588584601; Olivia Peterkin, Report: Hawaii has the third highest
unemployment rate in the country, PACIFIC BUSINESS NEWS, May 22, 2020
https://www.bizjournals.com/pacific/news/2020/05/22/hawaii-third-highest-unemployment-
rate.html.
11
Hawaii’s Unemployment Rate at 22.6% in May, State of Hawaiʻi, Department of Labor and
Industrial Relations, June 18, 2020, http://labor.hawaii.gov/blog/news/hawaiis-unemployment-
rate-at-22-6-in-may/; Sergei Klebnikov, These 10 States Have The Highest Record
Unemployment Rates, FORBES, May 23, 2020,
https://www.forbes.com/sites/sergeiklebnikov/2020/05/23/these-10-states-have-the-highest-
record-unemployment-rates/#4387784568ee; Hawaii’s Unemployment Rate at 13.9% in June,
State if Hawaiʻi, Department of Labor and Industrial Relations, July 16, 2020,
https://labor.hawaii.gov/blog/news/hawaiis-unemployment-rate-at-13-9-in-

4
comparison, the unemployment rate was only 2.7 percent in January 2020. 12 Faced with the

unanticipated and unprecedented economic collapse, Hawaiʻi citizens reached for the only lifeline

most of them had: unemployment insurance benefits that were available—and required to be

processed—under Hawaiʻi law.

Despite the fact that the State is required by law to promptly process and pay

unemployment claims pursuant to Haw. Admin. R. § 12-5-89(c), (e), 13 Petitioners have been

june/#:~:text=HONOLULU%20%E2%80%94%20The%20Hawaiʻi%20State,of%2023.5%20per
cent%20in%20May.
12
Hawaii’s Unemployment Rate at 2.7% in January , State of Hawaiʻi, Department of Labor and
Industrial Relations, March 13, 2020, http://labor.hawaii.gov/blog/news/hawaiis-unemployment-
rate-at-2-7-in-january-2/.
13
The regulation provides in full:
(a) An unemployed individual may file an application for a determination of
insured status in accordance with this chapter. A claimant may withdraw an
application for a determination of insured status at any time prior to the time at
which a valid claim is established by the department. If a valid claim is
established, the claim may still be withdrawn if benefits have not been paid,
unless otherwise prohibited by federal law. Such a request shall be in writing.
Upon approval of the request and if the base period employers have previously
been notified that the individual has claimed benefits, the department shall mail a
copy of the written approval to each employer in the base period of the individual
claiming benefits to give notice of the cancellation of the claim. Any
determination rendered before the claim is withdrawn shall remain in effect and
shall not be voided by the withdrawal of the claim. A determination of
disqualification requiring subsequent earnings to requalify the individual shall
apply to the weekly benefit amount of the individual’s new claim.
(b) A determination that an individual is an insured worker shall remain in effect
throughout the benefit year for which it is made, unless modified in accordance
with section 383-40, Hawaii Revised Statutes.
(c) When an insured worker files an initial claim or a continued claim
certification, the department shall determine whether the worker has met the
conditions of section 383-29, Hawaii Revised Statutes, and whether the
worker is disqualified under section 383-30, Hawaii Revised Statutes.
(d) A benefit payment shall be deemed a determination and a notice to the
claimant that claimant is eligible to receive the payment for the period covered

5
thereby. The right to reconsider the determination is reserved to the department by
section 383-34, Hawaii Revised Statutes.
(e) Notice of determination shall be given as follows:
(1) A notice of a determination of insured status shall be promptly furnished
to the claimant. The notice shall include a statement as to whether the claimant is
an insured worker, the amount of wages for insured work paid to the claimant
by each employer during the claimant’s base period, and the employers by
whom such wages were paid. For a claimant who is determined insured, the
notice shall also state the claimant’s benefit year, weekly benefit amount, and the
maximum amount of benefits that may be paid to the claimant for the claimant’s
unemployment during the year. For a claimant who is determined not insured, the
notice shall include the reason for the determination.
(2) A notice of a determination regarding a claimant’s insured status shall be
given by delivery thereof or by mailing to each employer by whom the claimant
was employed during the claimant’s base period. The notice of determination
shall include the percentage of benefits paid that will be charged or not charged in
accordance with section 383-65, Hawaii Revised Statutes, based on the job
separation information provided by the claimant to the department. The employer
may file a request for reconsideration or an appeal of the determination notice in
accordance with section 383-34 or 383-38, Hawaii Revised Statutes.
(3) If the department determines pursuant to sections 383-29 and 383-30, Hawaii
Revised Statutes, that a claimant is not eligible to receive waiting-week credit or
benefits for any week or weeks, the department shall promptly furnish to the
claimant written notice of the determination together with the reasons therefore
and of the period covered by such determination. Any employing unit which
employed a claimant shall be entitled to receive a written notice of a
determination made pursuant to section 383-30, Hawaii Revised Statutes, only if
it has been provided an opportunity to furnish information which may affect the
claimant’s right to waiting week credit or benefits for any week of unemployment
prior to the determination of eligibility.
(4) Written notice of any determination to which any party is entitled shall be
given promptly by delivery in person or by mail to the party’s last known
address. Each notice shall include, in addition to stating the decision and
reasons therefor, a notice specifying the party’s right of appeal. The notice of
right of appeal shall state clearly the place and manner for taking an appeal from
the determination and the period within which an appeal may be taken.
(5) A determination of insured status or of eligibility becomes final with respect
to any interested party ten calendar days after notice is mailed or handed to the
party unless within that period, the party files an application for reconsideration or
an appeal to the referee, except that, pursuant to section 383-34, Hawaii Revised

6
subjected to, among other things, no determinations whatsoever, lengthy and unexplained

processing delays, repeated and duplicative requests for supporting documentation, intermittent

and inconsistent payments (including the complete halting of payments for months), automatic,

unexplained disqualifications, unavailability of language access, inaction, silence, and a plethora

of shifting explanations—all preventing the receipt of desperately-needed assistance from the

State, and impairing the ability to obtain Federal Pandemic Unemployment Assistance (“PUA”)

available under the CARES Act. Hawaii’s unemployed are suffering through no fault of their own.

Petitioners are drowning under mounting financial obligations, while attempting to navigate an

understaffed and under-resourced unemployment system that cannot keep up with demand. While

initial difficulty may have been understandable immediately following the onset of the pandemic

and resulting restrictions, more than six months in, the DLIR’s failings can no longer be excused

or ignored.

Statutes, the department, on its own motion, may reconsider the determination
within the time specified by such section.
(f) Written notice of any redetermination shall be given promptly in the same
manner and to the same parties as provided by this section for determination. A
redetermination shall be deemed final, unless a party entitled to notice thereof
files an appeal within ten calendar days, or within thirty calendar days if the
referee extends for good cause the period within which an appeal may be filed,
after the notice was mailed to the party’s last known address or otherwise
delivered to that party.
(g) Upon a showing by the employer that the employer can provide information
which may affect the claimant’s right to waiting week credit or benefits for any
week of unemployment, the employer may request an opportunity to appear in
person at a pre-determination hearing to present such relevant information. Upon
such a request for a hearing, the department shall inform the employer as to the
date, time, and place of the hearing.
A claimant shall be given an opportunity to respond to any information provided
by the employer at such hearing.
(Emphasis added).

7
 Petitioners are not unaware of DLIR’s efforts to improve. It recently asked law students

and members of the Hawaiʻi bar to help. 14 But this smacks of desperation and an

acknowledgement that it has failed to discharge its legal obligations, not strategic action.

Recognizing the persistence and gravity of the DLIR’s issues, Hawaiʻi legislators have even

volunteered to process claims.15 Tellingly, Representative Laura Thielen characterized her time

assisting at DLIR as “overwhelming” and “heartbreaking”. 16 As she recognizes, while claims

processing may be getting faster, it is still “not nearly as fast as people need.” 17

A survey of individuals who applied for unemployment benefits reveals that only 12% of

respondents reported resolution of their unemployment benefits claim. Also, while 75% of

responding applicants had their applications approved, only 70% of those approved applicants

had actually received any payments. Nearly all respondents reported missed or skipped

payments. Almost half of respondents reported that they had been told an examiner would contact

them; of those, 78% have been waiting between five (5) to more than twelve (12) weeks for

contact from an examiner, with 32% waiting over 12 weeks and some as many as 27 weeks for

contact from DLIR. Further, 79% of respondents reported cessation of payments; and, for those

individuals, 55% reported that they had not received any payment for between seven (7) to

twelve (12) weeks. 29% of respondents reported that their claim had been “disqualified”— and

of the disqualified applicants, 53% had appealed, but only 34% had been scheduled for a hearing.

14
Marcel Honore, State Asks Lawyers, Law Students To Help With Unemployment Claims
Backlog — Pro Bono, CIVIL BEAT, August 27, 2020, https://www.civilbeat.org/2020/08/state-
asks-lawyers-law-students-to-help-with-unemployment-claims-backlog-pro-bono/.
15
https://www.facebook.com/SenatorLauraThielen/posts/unemployment-claims-updatethe-
response-to-my-post-about-working-at-the-ui-volunt/2990888574290562/.
16
Id.
17
Id.

8
Most disqualified applicants waited more than over 8 weeks to receive a hearing date, and

68% reported delays of between five (5) to more than twelve (12) weeks to resolve outstanding

claim issues. More recently, individuals waiting for months for contact from an examiner had

their claims—without explanation or due process—simply disqualified.

Nearly all respondents reported attempting to contact the DLIR hundreds—and, in some

cases, thousands—of times to receive updates about their pending claim. 58% of respondents

reported waiting between five (5) to more than twelve (12) weeks for their claim to be closed,

which is a prerequisite to applying for PUA. 42% of these individuals have waited longer than

12 weeks. This data, however, does not tell the full story. Human suffering cannot be told by

numbers alone. People all over Hawaiʻi are suffering severe hardship due to delays, inaction, and

unavailability of the crippled unemployment system.

For this reason, the DLIR must be ordered to discharge its mandatory obligation under

Haw. Admin. R. § 12-5-89(c), (e). There is no discretion under the law to circumvent disbursement

of this necessary State assistance. Irreparable injury has already occurred. If a writ is not issued

by this Honorable Court forcing the DLIR to perform its mandatory duties under the law, Hawaiʻi

will face a worsening avalanche of financial destitution impacting not only the lives of its

unemployed, but all of its residents.

D. Petitioners Have Suffered Irreparable Injury

Below are but a handful of examples of individual stories explaining DLIR’s failures and

the resulting, immeasureable harm. Additional declarations are attached and the record will be

further supplemented with more declarations subsequent to the filing of the Petition. The

following chart gives an overview of issues in each of the individual declarations:

9
 DECLARATION ISSUES PER KEY (below) X = UI O = PUA / = Both UI & PUA
DECLARANT NAME JS DQ-NC ND/NCC S/S IDV CC LV A/DNA ABP/INC OSW DWR U&P-D DOE
Greg Ngiraiwet X X X X X
Inez Velasquez X X /
Tammie Evangelista X X
Melissa Nunes X X
Maya Simek O /
Nathan Ploesser X X O X /
Brandy Garcia X X X
Jordan Fite X X
Darletha Andrews X X
Cassie Millar X X / X X X /
Shanda Luckey X X X X X
Marie Olivry X O X /
Celeste Williams O
Susan Martin O O O
Constance Fairbanks O O O
Janelle Freeman X X
Alicia Totten O / /
Cathy Fukunaga X X X X
Lori Sierra Knight X X X
Gael Reuss X X

JS Job Separation - Waiting on Adjudicator call longer than 10 weeks (Most are waiting 20-28 weeks)
DQ-NC Disqualification/Denial - No Adjudicator Call/No Due Process
ND/NCC No Disqualification Letter Received or Claim Closure - Cannot Appeal or Apply for PUA Without It
S/S Start/Stopped Payments (If PUA paid, then stopped/Denied, all PUA claims state "Owe $ back")
IDV Identity Verification
CODE KEY: CC Denied for Child Care Reasons - COVID/ Distance Learning Related
LV Location Verification - Unknown Technology Error When Filing
A/DNA Incorrect "Availability to Work/Did Not Accept Work" Determination
ABP/INC Alternative Base Period or Income Incorrect/Pending Monetary Determination
OSW Out of State Wages Not Included in Determination
U & P- D Both UI & PUA - Denied by 1 and Ineligible/do not Qualifiy for Other
DOE DOE Missed Calls and/or Summer Pay Eligibility Disqualifications
DWR Determination of Work Registration (Hire Net Registration - Waived by Gov. Ige)

1. Petitioners Have Received No Response from DLIR Regarding their

Claims

Some petitioners have received no response from DLIR regarding their request for

unemployment benefits. For example, Gregorio Ngiraiwet is a war veteran of Iraq and

Afghanistan and a successful chef of thirteen (13) years, who was furloughed on March 27, 2020

due to the pandemic. (Ngiraiwet Decl., ¶¶ 1-3.) Mr. Ngiraiwet initially filed for unemployment

insurance in California, but was recommended to apply for unemployment benefits in Hawaiʻi

because he had more qualifying wages here. (Id., ¶¶ 4-5.) Mr. Ngiraiwet applied for Hawaiʻi

10
unemployment benefits around May 16, 2020, and since has filed weekly claims for over twenty

(20) weeks. (Id., ¶ 6.)

However, despite Mr. Ngiraiwet attempts to contact the unemployment insurance office at

least five (5) times each day since May, he has received no unemployment benefits with no

explanation as to why. (Id., ¶¶ 8-11.) Senators, district representatives, and Congress members

have also contacted the unemployment office on his behalf—to no avail. (Id., ¶ 11.)

Mr. Ngiraiwet has $0 in his bank account, and has been residing with a family member in

San Diego since June. (Id., ¶¶ 17, 20.) His car insurance was cancelled for non-payment, and his

car is at risk for repossession in the next few weeks due to non-payment. (Id., ¶ 20.) He has not

been able assist his family financially, including with expenses for his son’s college tuition and

uncle’s passing. (Id., ¶¶ 21-22.)

Critically, Mr. Ngiraiwet has a high-functioning PTSD diagnosis from the military since

his discharge in 2007—which has been exasperated by his stress over money and the DLIR’s

failure to discharge its mandatory obligations. (Id., ¶ 18.) On September 1, 2020, Mr. Ngiraiwet

experienced a mental breakdown, and his doctor and family recommended that he go into a

treatment center for PTSD. (Id., ¶ 19). Mr. Ngiraiwet’s PTSD has never impacted his life to this

degree. (Id., ¶ 19).

Similarly to Mr. Ngiraiwet, Petitioners Nathan Ploesser and Maya Simek—whose

declarations are attached—have received no benefits months after applying and notwithstanding

their good faith efforts to communicate with the DLIR.

2. Petitioners’ Claims Remain Unresolved

Other Petitioners have been subjected to an array of inexplicable and chaotic

communications, resulting in inaction. For example, Inez Velasquez waited for unemployment

benefits for twenty-five (25) weeks after being furloughed from her job at Nordstrom on March

11
12, 2020. (Velasquez Decl., ¶¶ 3-4.) After being unable to initially file her unemployment claim

for four (4) days due to a system error, Ms. Velasquez ultimately filed her claim on March 21,

2020 and made regular weekly certifications thereafter. (Id., ¶¶ 5-7.) Over one month later, on

April 27, 2020, she received a letter indicating that she was ineligible due to insufficient quarters

and wages. (Id., ¶ 8.) She called over 100 times per day throughout the month of May, but the

phone lines were busy, and she was never able to speak with anyone at the unemployment office.

(Id., ¶ 10.) She also emailed DLIR and PUA, but received no response. (Id., ¶ 12.)

Ms. Velasquez filed a second unemployment claim on April 25, 2020, hoping that the

issues with the system may have been resolved and that UI would correctly apply her “alternative

base period” needed for her claim not to be disqualified. She was nevertheless deemed

“disqualified” again. (Id., ¶¶ 13-14.) Believing she had been denied unemployment benefits, she

applied for PUA. (Id., ¶ 15.) In the meantime, she continued filing certifications for the

unemployment claim opened in April, which the website indicated was both “disqualified and

inactive.” (Id., ¶ 18.) She also filed PUA weekly certifications, ultimately receiving a letter stated

that there was an “eligibility issue.” (Id., ¶ 20.) Ms. Velasquez nevertheless kept her PUA claim

open by filing weekly through the website, and her claim still indicates that it is “Pending due to

an issue that needs to be resolved.” (Id., ¶ 34.)

Ms. Velasquez called and emailed both the unemployment office and PUA. (Id., ¶ 22.)

She submitted six (6) help tickets on the PUA support system over twenty-five (25) weeks. (Id.)

She never received payment or a response to any of her calls, emails, or help ticket requests. (Id.,

¶¶ 22, 23.)

On July 10, 2020, Ms. Velasquez was informed by Nordstrom that she had been laid off.

(Id., ¶ 24.) Approximately one month later, she received a call from a staff member named

12
Chenelle from the unemployment office, who advised her to file a new claim, but only back to

July 4, 2020. (Id., ¶ 25.) Ms. Velasquez complained, because her claim goes back to March. (Id.,

¶ 26.) Nevertheless, as instructed, Ms. Velasquez filed a new claim through the unemployment

insurance website on August 8, 2020—only to receive another letter dated August 20, 2020 now

allegedly finding her “ineligible.” (Id., ¶¶ 30, 32.) That correspondence again also falsely stated

that Ms. Velasquez had “insufficient quarters and wages in base period” with only $1,283.24 in

wages. (Id., ¶ 32.) Her claim certifications for the month of August are also indicated “disqualified

due to invalid monetary determination.” (Id., ¶ 33.)

Ms. Velasquez has not worked in over six months. (Id., ¶ 35.) Despite following all

instructions and submitting everything asked of her, she has not received a single penny from

unemployment insurance or PUA. (Id.) She has been left with no choice but to ask for monetary

help for food, rent, utilities, and insurance coverage. (Id., ¶ 36.)

3. Petitioners’ Claims Have Been Erroneously Determined and

Significantly and Inexplicably Delayed

Other Petitioners have received some form of unemployment benefits, but less than what

they were entitled, and in an inexplicably delayed and substandard manner.

For example, Susan Tai Martin, a self-employed legal transcriptionist, has had a dramatic

decrease in work since February 2020. (Tai Martin Decl., ¶¶ 3-4.) Once the CARES Act was

signed by President Trump on March 27, 2020, she filed an unemployment claim with the DLIR.

(Id., ¶ 6.) She continued to file weekly claims until she was told she was ineligible for

unemployment benefits one month later, on April 25, 2020. (Id., ¶ 7.)

Ms. Tai Martin then applied for PUA on April 29, 2020. (Id., ¶ 8.) She received timely

payments for the two (2) weeks ending on May 16, 2020 and May 23, 2020. (Id., ¶ 12.)

13
Thereafter, however, due her earning $135.27 for the week through May 30, 2020, she was denied

benefits. (Id., ¶ 13.)

Ms. Tai Martin continued to regularly file weekly claims for ten (10) consecutive weeks,

beginning with the week of June 6, 2020. (Id., ¶¶ 16, 19, 25, 29, 32, 36, 39, 46, 50, 53.) Those

claims were not timely paid, resulting in ten (10) weeks of non-payment—despite her timely

responses to fact-finding requests and diligent and numerous follow up attempts, including through

the DLIR and PUA offices and emails to the Director of the DLIR, Hawaii U.S. Representative

Gabbard, State Senator Fevella, State Representative Cabanilla, and City Council Representative

Kym Pine. (Id., ¶¶ 16, 18, 20, 22, 24, 25, 26, 27, 34, 37, 39, 45, 49, 52.) All of her follow up

attempts, aside from her contact with State Senator Fevella’s office, remained unanswered. (Id.)

Ten (10) weeks later, on August 12, 2020, Ms. Tai Martin received payment for the week

ending in June 6, 2020 through August 8, 2020. (Id., ¶ 56.) She filed three (3) separate claims to

inquire about her non-payment for the week ending on May 30, 2020, but received no response.

(Id., ¶¶ 58-60.) This week remains unpaid as of September 12, 2020. (Id., ¶ 60.)

For ten (10) weeks, Ms. Tai Martin’s life was riddled with anxiety, frustration, depression,

and countless sleepless nights, as a result of inconsistent and inexplicable processing decisions and

inaction by the DLIR. (Id., ¶ 61.) This also placed a toll on her marriage, which has suffered

tremendously and not been the same. (Id.) It has taken a mental toll on her, resulting in some days

that were more than she could bear. (Id.)

4. Unemployment Claims by Hawaiʻi Teachers are being Improperly

Denied

Substitute teachers are another sub-group of Petitioners who have been harmed by the

DLIR’s inability to stand up an appropriate response to the pandemic. For example, Cathy

Fukunaga has worked as a substitute teacher with the Department of Education (“DOE”) since

14
March 2018. (Fukunaga Decl., ¶ 3.) Ms. Fukunaga is also a part-time (~3 hours/week) private

tutor. (Id., ¶ 4.) She has not had any work as a substitute since March 2020. (Id., ¶ 5.) DOE did

not inform her she was eligible for unemployment, but she heard from others that she should apply.

(Id., ¶ 6.)

Ms. Fukunaga applied for unemployment benefits on April 15, 2020, disclosing in her

application that she also had a private tutoring business. (Id., ¶ 7.) After initial communications

with DLIR, Ms. Fukunaga began receiving UI benefit payments on May 25, 2020. (Id., ¶¶ 8-10.)

However, beginning with the week ending on May 30, 2020, Ms. Fukunaga’s filed weeks indicated

that they were “pending” because, among other things, she had “fail[ed] to accept available work.”

(Id., ¶ 12.) She called DLIR hundreds of times trying to get an explanation for the cessation of

payments, connecting with an individual only twice. (Id., ¶ 13.) She also sought help from her

representatives and Governor Ige. (Id., ¶ 14.)

Finally, in August, Ms. Fukunaga spoke to an individual at DLIR named Chanel who

advised her to submit a form showing that she had been re-hired as a substitute for the 2020-21

school year. (Id., ¶ 15.) After she had done so, she received payment only for the week ending

May 30, 2020. (Id., ¶ 16.) Her remaining filed weeks (from June 6, 2020 to August 15, 2020)

remained “pending” based on the cryptic detail “wages from educational institution”. (Id., ¶ 17.)

Ms. Fukunaga emailed DLIR on August 18, 2020 seeking assistance with this issue but

received no response. (Id., ¶ 18.) On September 3, 2020, she again spoke to Chanel and asked for

an explanation why her claim remained pending. (Id., ¶ 19.) Chanel told her—incorrectly18—that

18
Nearly one month prior, it was announced that substitute teachers could apply for
unemployment during the summer. Susan Esoyan, Hawaii substitute teachers can collect
unemployment this summer, state Labor Department says, HONOLULU STAR-ADVERTISER, July

15
substitute teachers were not eligible for unemployment through the summer. (Id.) Chanel told

Ms. Fukunaga that an examiner would contact her but, to date, none has. (Id., ¶¶ 20, 21.)

In early September, Ms. Fukunaga received benefits for the first two weeks (August 8 and

August 15) of the school year. (Id., ¶ 22.) Her status for the week ending August 22nd indicated

that she had again “fail[ed] to accept available work.” (Id., ¶ 23.)

Around this time, Ms. Fukunaga learned from another substitute teacher that she needed to

register with Telecommunication Services and Enterprise Acquisition Services (“TSEAS”), which

is a robo-calling system that alerts substitute teachers to job openings. (Id., ¶¶ 24, 25.) If a

substitute does not answer a call from TSEAS, the system moves on to the next teacher until the

opening is filled. (Id., ¶ 26.)

To her knowledge, Ms. Fukunaga has been called by TSEAS three times. (Id., ¶ 28.) She

missed two of the calls but called back immediately, only to be informed that the positions had

already been filled. (Id., ¶¶ 29, 30.) The third call came at 6:57 a.m. on September 10th; Ms.

Fukunaga did not hear it so did not answer. (Id., ¶ 31.) She checked the TSEAS website but the

job was no longer available. (Id., ¶ 31.)

On September 15th, Ms. Fukunaga emailed the TSEAS help line to request that DLIR be

provided with an explanation why she did not answer the September 10th call. (Id., ¶ 32.) The

individual to whom she spoke asked for a written explanation, which Ms. Fukunaga provided.

(Id.)

16, 2020, https://www.staradvertiser.com/2020/07/16/breaking-news/hawaii-substitute-teachers-

can-collect-unemployment-this-summer-state-labor-department-says/.

16
 Upon information and belief, Ms. Fukunaga understands that any missed robocall from

TSEAS is reported to or interpreted by DLIR to be a refusal to accept available work. (See id., ¶

27).

Ms. Fukunaga was paid for the week ending August 29th but her other outstanding claims

remain pending. (Id., ¶¶ 33, 34.) She has received payment for only 10 of the 22 weeks for which

she filed for UI benefits. (Id., ¶ 35.) As a result, Ms. Fukunaga has had to access her retirement

funds and is concerned that she will no longer have enough money for retirement. (Id., ¶ 36.) Her

husband also recently became unemployed and took retirement. (Id.) Budgeting and money

management are now difficult for them. (Id.)

Others experiencing issues TSEAS similar to Ms. Fukunaga include declarants Sierra

Knight and Gael Reuss.

5. DLIR’s Untimely and Erroneous Claims Determinations Will Further

Harm Petitioners by Depriving Them of Federal Lost Wages Assistance

The Federal Lost Wages Assistance (“LWA”) program adds an additional $300 of

unemployment benefits for up to five weeks. 19 To be eligible for LWA, individuals must (1) be

receiving weekly unemployment benefits of at least $100, (2) certify that their unemployment or

partial unemployment was due to pandemic-related disruptions, and (3) otherwise qualify for UI

benefits.20 LWA will begin in October.21

DLIR’s erroneous claims determinations threaten potentially eligible individuals’ ability

to receive much-needed LWA payments. First, anyone whose benefits have been erroneously set

19
FAQ - Lost Wages Assistance (LWA), State of Hawai‘i, Unemployment Insurance, September
9, 2020, https://labor.hawaii.gov/ui/main/faq-lost-wages-assistance-lwa/.
20
Id.
21
Id.

17
at less than $100 will be excluded from the program. Second, and as stated in DLIR’s LWA press

release: “[i]ndividuals with pending issues preventing payment will not receive the additional

$300 per week if they are allowed benefits after the program has ended.” 22 Thus, individuals like

Mr. Ngiraiwet and Ms. Velasquez—among the hundreds, if not thousands, of individuals who have

received no determination as to their claims and people with pending appeals—will be denied

LWA simply because DLIR has not processed their claim. The same is true of individuals with

“pending issues” like appeals and unanswered submission of requested documents. In short,

people most in need of help and who have already suffered from DLIR’s inaction, delays, and

errors will not be able to get LWA, further exacerbating their economic plight.

II.

STATEMENT OF JURISDICTION

The Court has original jurisdiction to provide the relief sought in this Petition, which

includes taking necessary steps to mitigate an ongoing financial catastrophe. The State of Hawaiʻi

empowers this Court with original jurisdiction to hear mandamus petitions via its constitution (Art.

IV, § 10) and statute (HRS § 602-5(3)).

The jurisdictional grant of mandamus includes requests, like this one, to compel public

officers to “fulfill the duties of their offices.” HRS § 602-5(3). Mandamus relief is proper where

the petitioner demonstrates (1) a clear and indisputable right to relief; and (2) a lack of other means

to adequately redress the alleged wrong or obtain the required action. Kema v. Gaddis, 91 Hawai‘i

200, 204, 982 P.2d 334, 338 (1999); Barnett v. Broderick, 84 Hawai‘i 109, 111, 929 P.2d 1359,

22
Lost Wages Assistance Benefits Distribution Begins, State of Hawaiʻi, Department of Labor
and Industrial Relations, September 22, 2020,
https://labor.hawaii.gov/blog/news/5861/?fbclid=IwAR23SZqIOfy8RsOA843eVOf4xys4KY073
JEWTM3r2zhXTx3WRzPkSBdwXZM.

18
1361 (1996). “Mandamus relief is available to compel an official to perform a duty allegedly owed

to an individual only if the individual’s claim is clear and certain, the official’s duty is ministerial

and so plainly prescribed as to be free from doubt, and no other remedy is available.” Barnett, 84

Hawaiʻi at 111.

Additionally, HRS § 602-4 states that:

The supreme court shall have the general superintendence of all courts of
inferior jurisdiction to prevent and correct errors and abuses therein where no
other remedy is expressly provided by law.

See also Territory v. Hayes, 42 Haw. 1 (1957); In Re Edward J. Carvelo, 44 Haw. 31, 352 P.2d

616 (1959).

While “[t]he jurisdiction of this court is primarily appellate, to determine questions of law,

or of mixed law and fact, which are properly brought before it on appeal[, ] [u]nder HRS § 602-5,

the original jurisdiction of this court is confined to ‘questions arising under writs of error,

certiorari, [and] mandamus.” State ex rel. McClung v. Fukushima, 53 Haw. 295, 297 (1972).

HRS § 659-1 defines mandamus which may be issued by this court as an order addressed

“to an individual, or corporation, or court of inferior jurisdiction, directing him or it to perform

some certain act belonging to the place, duty or quality, with which he or it is clothed.”

Furthermore, HRS § 602-5(3) explicitly grants this Court “original jurisdiction in all questions …

arising under writs of mandamus directed to public officers to compel them to fulfill the duties of

their offices.”

Therefore, it is well-established in the State of Hawaiʻi that a writ of mandamus may issue

against a public officer to compel that officer to perform the duties of their office, and is an

extraordinary remedy that will not issue unless (1) the petitioner demonstrates a clear and

indisputable right to relief, and (2) a lack of alternative means to redress adequately the alleged

19
wrong or obtain the requested action. Kema, supra, 91 Hawai‘i at 204 (1999) (citations omitted);

see also State ex rel. Marsland v. Shintaku, 64 Haw. 307 (1982).

As demonstrated in the present petition, both criteria have been met, and writ relief must

be granted, compelling the DLIR to promptly process and pay claims for unemployment benefits

in accordance with their statutory and regulatory mandate.

III.

STATEMENT OF ISSUES PRESENTED AND RELIEF SOUGHT

This Petition addresses three seminal points which support the necessity for immediate writ

intervention under Hawaiʻi law:

1. Haw. Admin. R. 12-5-89(c) articulates a mandatory duty on the part of the DLIR

to promptly process and disburse unemployment benefits.

2. The DLIR has failed to discharge its mandatory obligations under Haw. Admin. R.

12-5-89(c) and federal law, which has already resulted in irreparable injury to Petitioners, and has

perpetuated an escalating unemployment crisis that imminently threatens the health, safety, and

welfare of Hawaii’s jobless.

3. Due to the rapidly evolving nature of the injuries incurred, no alternative means

exist to redress the wrong in this case. Immediate intervention is requested from this Honorable

Court to compel the DLIR to discharge its mandatory obligation under Haw. Admin. R. 12-5-

89(c). There is simply no discretion under the law other than to grant the requested relief.

IV.

STATEMENT OF REASONS FOR ISSUING THE WRIT

This Petition seeks extraordinary relief under extraordinary circumstances. Specifically,

this Petition respectfully requests this Honorable Court to exercise its original jurisdiction and

20
issue a writ of mandate compelling the DLIR to discharge its mandatory obligation to process—

and “promptly” issue—unemployment benefits to citizens of the State of Hawai‘i who are

unemployed, pursuant to Haw. Admin. R. 12-5-89(c).

This mandatory duty is not only proscribed by state law, but it implicates a federally

protected procedural due process right, as recognized by the United States Supreme Court in

Goldberg v. Kelly, 397 U.S. 254, 261-262, n. 8. As a result, the present writ Petition presents

critical questions regarding the DLIR’s failure to discharge a state-mandated, as well as federal,

due process obligation regarding the provision of unemployment benefits to affected individuals.

A. Haw. Admin. R. 12-5-89(c) Confers A Mandatory Duty, Obligating The

DLIR To Promptly Issue Unemployment Benefits

Mandamus relief is available to compel an official to perform a duty owed to an individual

if the individual’s claim is clear and certain; the official’s duty is ministerial and so plainly

prescribed as to be free from doubt; and no other remedy is available. In re Disciplinary Bd. Of

Hawaii Supreme Court, 91 Hawai‘i 363, 368, 984 P.2d 688, 693 (1999). “A duty is ministerial

where the law prescribes and defines the duty to be performed with such precision and certainty

as to leave nothing to the exercise of discretion and judgment.” Salling v. Moon, 76 Hawai‘i 273,

274 n. 3, 874 P.2d 1098, 1099 n. 3 (1994) (citation omitted).

Here, Haw. Admin. R. § 12-5-89(c) sets forth as follows:

When an insured worker files an initial claim or a continued claim certification,

the department shall determine whether the worker has met the conditions of
section 383-29, Hawai‘i Revised Statutes, and whether the worker is
disqualified under section 383-30, Hawaii Revised Statutes. (emphasis added)

Furthermore, Haw. Admin. R. 12-5-89(e), states that:

(e) Notice of determination shall be given as follows:

(1) A notice of a determination of insured status shall be promptly furnished
to the claimant. The notice shall include a statement as to whether the claimant
is an insured worker, the amount of wages for insured work paid to the claimant

21
 by each employer during the claimant's base period, and the employers by
whom such wages were paid. For a claimant who is determined insured, the
notice shall also state the claimant's benefit year, weekly benefit amount,
and the maximum amount of benefits that may be paid to the claimant for
the claimant's unemployment during the year. For a claimant who is
determined not insured, the notice shall include the reason for the
determination.

Haw. Admin. R. § 12-5-89(e) (emphasis added).

The DLIR’s nondiscretionary duty to promptly determine, notice, and issue unemployment

benefits can be compelled by mandamus. See, e.g., Hanabusa v. Lingle, 119 Hawai‘i 341, 351

(2008) (citing Brotherton v. Moore, 159 W.Va. 934, 230 S.E.2d 638, 642 (1976) (The governor’s

duty to appoint an executive officer upon occurrence of a vacancy in a non-elective office is a

“nondiscretionary duty to act” and a “duty which can be enforced by mandamus”)); accord,

Trumka v. Moore, 180 W.Va. 284, 376 S.E.2d 178 (1988); see also Morganelli v. Casey, 166

Pa.Cmwlth. 574, 646 A.2d 744, 747 (1994) (the governor’s execution of death penalty warrants is

a ministerial duty and “the absence of a stated time limit, within which the Governor must act,

does not exempt the duty from being judicially mandated if not performed.”) Further, a governor’s

duty to act is enforceable by mandamus when the duty is “postponed unreasonably” and not

performed after the passage of an “unreasonable period of time.” Brotherton, 230 S.E.2d at 642;

Trumka, 376 S.E.2d at 181; Morganelli, 646 A.2d at 747.

While it is acknowledged that writ intervention is sparing, it has been granted by this Court

in situations that are far less grave than the one presented here. For example, in Hanabusa, the

Court granted a petition for writ of mandate aimed at directing the state governor to nominate six

candidates to replace “holdover” members of the University of Hawai‘i Board of Regents whose

terms had expired. This Court concluded that the governor’s duty, pursuant to the Hawai‘i

Constitution, article X, section 6, and HRS §§ 304A-104(a) and 304A-104.5(e), to nominate and

22
appoint members of the Board of Regents of the University of Hawai’i was subject to a “reasonable

time standard.” Hanabusa, 119 Hawai‘i at p. 351. In so holding, the Supreme Court indicated

that “reasonable time is judged by the totality of the circumstances.” Id. (citing Fukida v.

Hon/Hawai‘i Service and Repair, 97 Hawai’i 38, 45 (2001) (reasonableness of the period of time

claimed for loss of use of property is determined by evaluating the totality of the circumstances).

The Court found the duty to be mandatory and, thus, granted the requested relief.

Here, to an even greater degree than Hanabusa and Fukida, the DLIR is compelled—in

non-discretionary terms—to “promptly” process, give notice of, and, particularly in these

emergent times, disburse unemployment benefits, pursuant to Haw. Admin. R. § 12-5-89(e). This

State is in the midst of an unemployment crisis in which DLIR action is not a mere trifling or

discretionary convenience—rather, it is a mandated necessity and the very safety net designed to

prevent individuals like Petitioners from being pushed into financial ruin.

While this Court does not appear to have opined on what “prompt” means in the context

of Haw. Admin. R. § 12-5-89, it has previously held that “ ‘prompt’ in the Court’s view means the

shortest period compatible with sound judicial resolution.” State v. Araki, 82 Haw. 474, 478, 923

P.2d 891, 895 (1996) (citations omitted). Under no reasonable interpretation can it be said that

DLIR’s claims handling—as reflected in the declarations attached hereto--reflects “sound” agency

“resolution”.

Federal authority reinforces that DLIR’s current performance is in derogation of its

regulator duty of promptness. For example, section 303(a)(1) of the Social Security Act (“SSA”)

requires states, as a condition of receiving federal unemployment compensation administration

grants, to provide in their laws for “[s]uch methods of administration …as are found by the

Secretary of Labor to be reasonably calculated to insure full payment of unemployment

23
compensation when due.” In the 1971 decision, California Department of Human Resources

Development v. Java, 402 U.S. 121, the Supreme Court interpreted “when due” in Section

303(a)(1) to mean “at the earliest stage of unemployment that such payments [are] administratively

feasible after giving both the worker and the employer an opportunity to be heard.” Id. at 131.

Although the specific holding in Java required the state to pay benefits to claimants initially

determined eligible pending an employer appeal, the Court’s reasoning was broader, requiring

promptness at all stages of the eligibility determination and payment processes. Fusari v.

Steinberg, 419 U.S. 379, 387-388 n.15 (1975); Pennington v. Didrickson, 22 F.3d 1376, 1386 (7th

Cir. 1994) (quoting Jenkins v. Bowling, 691 F.2d 1225 (7th Cir. 1982)).

Furthermore, the U.S. Department of Labor has issued regulations interpreting the

promptness requirement of Section 303(a)(1) to require payment of unemployment compensation

to eligible claimants, and the making of determinations, “with the greatest promptness that is

administratively feasible.” 20 CFR 640.3(a). The Department has interpreted the promptness

requirement of Section 303(a)(1) to require prompt determinations on individual claims. See

Unemployment Insurance Program Letter (UIPL) No. 1145 (Procedures for Implementation of the

Java Decision), U.S. Dept. of Labor, November 12, 1971 (attachment),

https://wdr.doleta.gov/directives/attach/UIPL/uipl_pre1975/uipl_1145a.cfm (state law and

procedure must provide for “[p]aying benefits promptly, after a determination has been made in

the claimant’s favor, regardless of the pendency of the appeal period or of any appeal that has been

taken from the determination[.]”). In fact, a fundamental aspect of “payment when due” under the

SSA is that unemployment compensation is due to claimants who are eligible under state law,

which eligibility is determined on a week-by-week basis. Unemployment Insurance Program

Letter No. 04-01, U.S. Dept. of Labor, October 27, 2000,

24
https://wdr.doleta.gov/directives/attach/UIPL4-01.cfm. In other words, the DLIR risks any federal

funding it is receiving where, as demonstrated here, its claims processing takes longer than one

week. As the declarations submitted in support of this Petition demonstrate, the DLIR is falling

well sort of this performance metric.

The DLIR’s promptness obligation is mandatory, not optional. On this point, Hawai‘i law

is clear. The use of the word “shall” generally indicates the legislature’s intention to make a

provision mandatory, as opposed to discretionary. Gray v. Admin. Dir. of the Court, 84 Hawai‘i

138, 150 n. 17, 931 P.2d 580, 592 n. 17 (1997) (observing that “[t]he word ‘shall’ is generally

construed as mandatory in legal acceptation”); Voellmy v. Broderick, 91 Hawai‘i 125, 129–30, 980

P.2d 999, 1003–04 (App.1999) (declaring that “[t]he word ‘shall’ ‘must be given a compulsory

meaning ... and is inconsistent with a concept of discretion’ ” (quoting Black’s Law Dictionary

1375 (6th ed.1990) (other citation omitted))); but see Narmore v. Kawafuchi, 112 Hawai‘i 69, 83,

143 P.3d 1271, 1285 (2006) (noting that “[w]hile the word ‘shall’ is generally regarded as

mandatory, in certain situations it may properly be given a directory meaning” (quoting Jack Endo

Elec., Inc. v. Lear Siegler, Inc., 59 Haw. 612, 616-17, 585 P.2d 1265, 1269 (1978) (citation

omitted))). “We cannot change the language of the statute, supply a want, or enlarge upon it in

order to make it suit a certain state of facts. We do not legislate or make laws.” State v. Dudoit,

90 Hawai‘i 262, 271, 978 P.2d 700, 709 (1999).

Indeed, this Court has interpreted the word “shall” as “directory” rather than mandatory

only where a three part test has been satisfied. Specifically, in Perry v. Planning Comm’n of

Hawaii County, 62 Haw. 666, 619 P.2d 95 (1980), the Supreme Court articulated a three-prong

test for determining when the word “shall” may be interpreted as directory. The Court stated that:

First, “shall” can be read in a non-mandatory sense when a statute’s purpose

“confute[s] the probability of a compulsory statutory design.” [Id.] at 676, 619

25
 P.2d at 102. Second, “shall” will not be read as mandatory when “unjust
consequences” result. Id. Finally, “the word ‘shall’ may be held to be merely
directory, when no advantage is lost, when no right is destroyed, when no
benefit is sacrificed, either to the public or to the individual, by giving it that
construction.” Id., 677, 619 P.2d at 103.

Perry, 62 Haw. 666, citing Leslie v. Bd. of Appeals of County of Hawai‘i, 109 Hawai‘i 384, 394,

126 P.3d 1071, 1081 (2006).

None of the Perry factors apply here. To the contrary, there is no “probability” of a

compulsory statutory design. Haw. Admin. R. § 12-5-89(c) and (e) set forth an unambiguous

standard with respect to the prompt payment of unemployment benefits. Nothing is left to the

discretion of the DLIR other than to discharge this obligation. Moreover, the term “shall” as set

forth in Haw. Admin. R. § 12-5-89(e) must be interpreted as mandatory under the circumstances,

because to conclude otherwise would create the “unjust result” of leaving countless citizens of the

State of Hawai‘i without benefits to which they are entitled. There is simply no discretion left to

the DLIR under the circumstances other than to “promptly” process and pay citizens who apply

for benefits. That duty has not been discharged under the circumstances. As such, the DLIR must

be compelled to discharge its obligation.

Petitioners anticipate Respondents will argue that “a statute containing generally

recognized mandatory language may be found to be directory or discretionary, rather than

mandatory, where it concerns only a time for performance.” Malahoff v. Saito, 111 Hawai‘i 168,

191, 140 P.3d 401, 424 (2006). When this is the case, “the intention of the legislature must be

ascertained … from a consideration of the entire act, its nature, its object, and the consequences

that would result from construing it one way or the other.” Id.; compare Coon v. City & Cty. of

Honolulu, 98 Haw. 233, 256, 47 P.3d 348, 371 (2002) (such analysis only necessary where “the

plain language of the statute is unclear.”) After such consideration, a statute will be found

26
“directory rather than mandatory if the provisions of the statute do not relate to the essence of the

thing to be done or where no substantial rights depend on compliance with the particular provisions

and no injury can result from ignoring them.” Id. It cannot be reasonably disputed that the

requirement of prompt action set forth in Haw. Admin. R. § 12-5-89(c) and (e) relates to the very

essence and purpose of Hawaii’s unemployment law, and that substantial injury can and has

occurred from the non-compliance of the DLIR. Petitioners stories herein—and as further

illustrated in the additional declarations attached to this Petition—make clear the irreparable

degree of suffering and harm caused by DLIR’s delays and lack of communication.

This Court has previously held that Hawai‘i’s “unemployment compensation statute was

enacted for the beneficent and humane purpose of relieving the stress of economic insecurity due

to unemployment,” and that “[i]t should therefore be liberally construed to promote the intended

legislative policy.” Camara v. Agsalud, 67 Haw. 212, 216-17, 685 P.2d 794, 797 (1984).

Likewise, Petitioners are eligible for PUA under the Coronavirus Aid, Relief, and Economic

Security Act (“CARES Act”). The purpose of the CARES Act is to “provide[] fast and direct

economic assistance for American workers [and] families.”23 DLIR’s internecine delays and

refusal to pay Petitioners’ claims further frustrates this purpose, since PUA payments may only be

issued to an individual who “not eligible for regular compensation or extended benefits” or “has

exhausted all rights to regular unemployment or extended benefits.” CARES Act, PL 116-136,

March 27, 2020, 134 Stat 281, at Sec. 2102(a)(3)(A)(i).

The essence and purpose of Hawaii’s unemployment scheme, Haw. Admin. R. § 12-5-

89(c)-(e), and the CARES Act, is to protect Petitioners from the exact kind of severe economic

23
The CARES Act Works for All Americans, U.S. Dept. of the Treasury,
https://home.treasury.gov/policy-issues/cares.

27
insecurity that they are experiencing. Prompt determination of insured status and benefits

disbursement are essential to relieving the daily stress of economic insecurity, and Petitioners

have substantial rights in these benefits. See, e.g., Ainoa v. Unemployment Comp. Appeals Div.,

62 Haw. 286, 295, 614 P.2d 380, 382 (1980). Finally, substantial injury can and has resulted from

the DLIR’s dereliction of its duties. Petitioners and thousands of other claimants have been

stripped of the protections of Hawaii’s unemployment program, and have instead been left out in

the cold for weeks, teetering on the edge of, if not already in, financial ruin.

For example, in Barnett v. Broderick, 84 Hawai‘i 109, 929 P.2d 1359 (1996), this Court

granted a writ of mandamus compelling a public officer to perform a ministerial act. There, the

order at issue commanded that a clerk “shall not refuse to accept for filing any documents not

presented in the proper form.” Id. at 111. This Court found that “[d]espite this order, the circuit

court continued an internal, unwritten policy that any questionable documents required prior

review and approval by the motions or administrative judge,” and accordingly failed to accept the

petitioners documents for filing. Id. Since the petitioner there had “an indisputable right to have

his documents filed in a timely manner and ha[d] no alternative to the present action,” the Court

granted “his request for relief.” Id. Similarly, the DLIR here is mandated by Haw. Admin. R. §

12-5-89(e) to promptly furnish determinations of insured status to and make payment to

Petitioners, whose right to this prompt determination and issuance is indisputable.

Furthermore, the Petitioners right to unemployment benefits is subject to well-defined

federal protections, which implicate due process concerns. For example, in 1971, pursuant to 42

U.S.C. § 503 (Section 303 of the Social Security Act), the United States Supreme Court held that

in order to ensure that a claimant does not have to resort to relief, unemployment benefit payments

must be promptly initiated. See California Dep’t of Human Res. Dev., 402 U.S. at 130 (concluding

28
“that the word ‘due’ in § 303(a)(1), when construed in light of the purposes of the Act, means the

time when payments are first administratively allowed as a result of a hearing of which both

parties have notice and are permitted to present their respective positions.”).

Again, while an initial backlog was not unexpected, the DLIR has had over half a year to

figure out a way to get the beneficiaries it is supposed to serve the assistance they so desperately

need. Surely, it can do better than legislative and bar member stand-ins. Under both state and

federal law, the DLIR has failed to discharge its mandatory obligations. As such, since the DLIR

has neglected its mandatory duties, Petitioners have no alternative but to seek immediate relief in

this present action.

B. Writ Intervention Is Necessary Because Petitioners Have No Alternative

Means To Redress The State’s Failure To Discharge Its Mandatory
Obligation Under Haw. Admin. R. 12-5-89(c)

The effects of the COVID-19 global pandemic cannot be understated. Equally as critical,

however, is the health, safety, and welfare of the citizens of the State of Hawai‘i. Those interests

reign supreme in the immediate request for mandamus relief. Mandamus relief is the only option

available to Petitioners at this time, and no alternative exists under the law, because a civil lawsuit

aimed at compelling the DLIR to discharge its mandatory obligations under Hawai‘i law will result

in protracted litigation, invariably resulting in financial disaster for the citizens of Hawai‘i.

Intervention is needed now.

More than six months into the COVID-19 pandemic, Petitioners and thousands of Hawaii’s

jobless are still at the mercy of the byzantine rules of the DLIR, which has failed to carry out its

regulatory mandate. Petitioners have appealed, called, and emailed the DLIR hundreds, if not

thousands of times. Yet, these pleas have fallen on deaf ears. In the interim, Petitioners like those

discussed above and thousands of other individuals must face the stark an unimaginable choices

29
brought about by financial hardship, such as whether to pay their mortgage or buy groceries for

their children.

Delayed processing of unemployment benefits will result in immediate, irreparable injury

to Petitioners. In analyzing a situation involving property rights, a partition action, and the Forgay

doctrine,24 this Court held that writ of mandate relief is available where it can be shown that the

losing party will be subjected to undue hardship and irreparable injury if appellate review must

wait until the final outcome of litigation. Lambert v. Teisina, 131 Hawai‘i 457, 462 (2014); citing

Ciesla v. Reddish, 78 Hawai‘i 18, 20, 889 P.2d at 704 (1995); Bank of Hawai‘i v. Davis Radio

Sales & Serv., Inc., 6 Haw. App. 469, 475 n. 10, 727 P.2d 419, 424 n. 10 (1986); Penn v.

Transportation Lease Hawai‘i, Ltd., 2 Haw. App. 272, 630 P.2d 646 (1981).

This is precisely the danger here. Given the hemorrhaging ripple-effect of a continuing

state-wide deprivation of unemployment benefits, there is no legal alternative other than to compel

the DLIR to discharge its mandatory obligations. A direct lawsuit that creeps its way through the

civil system will only result in a compounded avalanche of unemployment disaster for the already-

suffering citizens of Hawai‘i. It is for this reason that this case presents a watershed example of

when, where, and why writ relief must issue—immediately. See, e.g., KNG Corp. v. Kim, 107

Hawai‘i 73, 77, citing Bank of Hawai‘i v. Davis Radio Sales & Serv., Inc., 6 Haw.App. 469, 475

n. 10, 727 P.2d 419, 424 n. 10 (1986).

The DLIR has a mandatory duty that must be discharged in explicit, non-discretionary

terms. As is evident from Petitioners’ injuries detailed in the attached declarations, it is not a duty

24
See, e.g., Forgay v. Conrad, 47 U.S. 201 (1848).

30
that can be discharged and condoned by chaos, or by an endless cascade of circular explanations

and inaction.

Petitioners’ stories are not singular or isolated. According to recent reporting, the DLIR’s

backlog has ballooned exponentially since the start of the pandemic, with over 80,000 pending UI

claims as of August, which was prior to the second shutdown.25 There are purportedly now three

groups making claims determinations: (1) approximately 10 individuals are handling identity

verification or paperwork issues; (2) approximately 40 individuals—referred to by DLIR as

“examiners” —are handling job separation issues only; and (3) approximately 20 people are

handling location verification issues, which usually involve people who have moved to the

continental U.S.26 That means there is currently a total of only about 70 claims adjudicators to

handle the estimated backlog. If 8 claims can be processed per adjudicator per day, 27 that means

it would take 142 days, or more than six-and-a-half months, just to get through the backlog that

existed in August. Hawaii’s jobless—with little or no income, mounting debts, and depleted

savings—cannot afford this timeline.

Additionally, the DLIR has changed its requirements during the pandemic, requiring

applicants to submit additional verification through unsecured channels in the form of a “selfie”

photo while holding their official identification and Social Security cards. 28 These additional

requirements increase confusion and delay. 29

25
https://www.facebook.com/AndriaTupola/posts/2795856100738310.
26
Id.
27
Id.
28
Id.
29
Before his resignation on August 5, 2020, DLIR Director Scott Murakami had been on leave
since June 1, leaving the agency without leadership in this unprecedented crises. Respondent

31
 Because DLIR has abdicated its statutorily-mandated duty and shows no signs of promptly

processing Petitioners’ claims, there is no alternative means by which Petitioners may seek redress

absent writ of mandate relief.

C. The DLIR Must Be Compelled To Act In Light Of An Escalating

Unemployment Crisis That Is Imminently Damaging The Health, Safety,
And Welfare Of Hawaii’s Jobless

Writ intervention is necessary in order to preserve the livelihood of Hawai‘i residents.

DLIR’s failure to make timely determinations and continuous unemployment insurance payments

is having a devastating impact on Hawai‘i’s most vulnerable.

There is no doubt that the human toll of the coronavirus epidemic has been immense: more

than 6.7 million infected and over 200,000 fatalities in the U.S. alone as of the time of this

writing.30 The financial impact has been even more vast, affecting businesses—and their

employees—of every size and across most industries. Essential businesses and government

functions, however, have been going full bore throughout the pandemic. Hawai‘i’s stay at home

orders specifically allowed any government department or agency to perform “Essential

Governmental Functions,” which is defined to include all services needed to ensure the continuing

operation of the government agencies and provide for the health, safety and welfare of the public. 31

The provision of unemployment benefits is one such service. As such, DLIR has continued to

David Ige, the Governor of Hawai‘i, felt that Mr. Murakami “deserved some time off”
notwithstanding the burgeoning unemployment catastrophe his agency was supposed to be
handling. Olivia Peterkin, Head of Hawaiʻi Department of Labor and Industrial Relations
resigns, PACIFIC BUSINESS NEWS, August 10, 2020,
https://www.bizjournals.com/pacific/news/2020/08/10/hawaii-departmen.html.
30
Covid in the U.S.: Latest Map and Case Count, T HE NEW YORK TIMES,
https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html.
31
See n. 5, supra; see, e.g., City and County of Honolulu Emergency Order No. 2020-11,
https://www.honolulu.gov/rep/site/may/may_docs/Emergency-Order-No.-2020-11.pdf.

32
operate throughout the pandemic and purports to have increased both its staffing and technological

capacity in an effort to keep up with the processing of Hawai‘i’s unemployment claims. 32 The

Hawaii Convention Center has even been converted into a staffed unemployment claim processing

and call center.33

But, as of September 2nd, DLIR—according to its Director—had only 21 claim

examiners for the entire state, with a claims backlog of over 23,000.34 If most of those claims

require adjudication by an examiner (as also conceded by DLIR), then each examiner would be

responsible for approximately 1,100 claims each. If it took just 25 minutes to process a claim

(notwithstanding information that it takes over twice this time), it would take the purported 21

examiners 57 days just to process the claimed backlog of 23,000 claims. As there is every reason

to believe the actual backlog is far greater than what DLIR is claiming, this estimate is likely well

short of reality. And, finally, Petitioners’ recent survey data has disclosed that claims involving

“Job Separation” issues are being disqualified without an examiner call (in contravention of DLIR

policy) most claimants have been waiting 5+ months to receive.

This does not account for new claims filed in the interim. Given the months that have

already passed—and the likelihood that DLIR’s data is, at best, questionable—this timeline is

32
State Releases Updated Unemployment Insurance Information, DLIR News Release, August
20, 2020, https://labor.hawaii.gov/blog/news/state-releases-updated-unemployment-insurance-
information-10/.
33
Janis L. Magin, State Volunteers to Process Jobless Claims at Hawaiʻi Convention Center,
PACIFIC BUSINESS NEWS, April 20, 2020,
https://www.bizjournals.com/pacific/news/2020/04/20/state-volunteers-to-process-jobless-
claims-at.html.
34
See https://www.facebook.com/watch/live/?v=401007547550736&ref=watch_permalink.
While Director Estaquío’s numbers do not jibe with more recent reports from on-the-ground
volunteers of a backlog exceeding 80,000, supra p. 30-31, they are used here to show that, even
under a “best case” viewpoint, the outlook for Hawaii’s jobless is grim.

33
neither realistic nor acceptable. DLIR is failing its core mandate to help the unemployed get the

benefits they need to pay their bills and weather this economic storm.

Senator Thielen who, as detailed above, has seen the situation at DLIR first hand, proposes

that DLIR issue nominal payments even while claims are processing. 35 “This is an insurance

system, so I think there is kind of a fiduciary responsibility to be cautious with how it goes out,”

Thielen said.36 “But I would encourage the state to be willing to step out of the traditional comfort

zone to get payments to people quicker even if that means maybe taking a risk and even if that

means the state may end up having to cover some of the payments themselves.” Thielen said if

the state does not get money into the hands of people now, it could face dire longer-term

community consequences. “Too many people are living paycheck to paycheck, and now we’re

into the second month,” she said. “There’s only so long that you can tell people to hang on.” 37

Hawai‘i residents who lost their jobs and income as a result of the unprecedented economic

collapse caused by COVID-19 and the restrictions it necessitated—as well as those already

claiming unemployment prior to the shutdown—are struggling to survive. Hawai‘i’s jobless

(currently over 13% of the population) simply cannot afford further delay while the administration

waits on help from the federal government and does nothing to address the fundamental flaws in

the State’s current system for the processing and payment of pending unemployment claims.

35
Allison Schaefers, Less Than One-Third of Hawaii’s Unemployment Claims Have Been Paid
Since March 1, HONOLULU STAR-ADVERTISER, April 28, 2020,
https://www.staradvertiser.com/2020/04/28/hawaii-news/less-than-one-third-of-hawaiis-
unemployment-claims-have-been-paid-since-march-1-2/.
36
Id.
37
Id.

34
 V.

CONCLUSION

In light of the foregoing, writ intervention is necessary. Mandamus is the only plain,

speedy, and adequate remedy available at law. Payment of unemployment benefits is critically

necessary, because any further delays will serve to decimate the economic viability of countless

Hawai‘i residents.

For this reason, this Court is requested to issue a writ of mandamus, directing the DLIR to:

(1) Immediately make nominal, life-sustaining payments to all pending claimants;

(2) Take all actions necessary to process and promptly pay unemployment benefits

pursuant to Haw. Admin. R. § 12-5-89(c), (e) and 42 U.S.C. § 503;

(3) File bi-weekly, publicly-available reports to the Court—starting by no later than 7

days after the grant of this Petition—specifically identifying all steps that have been taken towards

(1) and (2), above, and providing a timeline for completing processing of all outstanding

unemployment claims;

(4) Retain jurisdiction until the DLIR has adjudicated all claims for unemployed

workers impacted by COVID-19;

(5) Award Petitioners all costs and attorney fees under any applicable authority; and

(6) All other further relief this Court deems just and proper.

//

//

//

//

//

35
 DATED: Honolulu, Hawaiʻi, this 28th of September, 2020.

Respectfully submitted,

/s/ J. Blaine Rogers

PAUL ALSTON
J. BLAINE ROGERS

Attorneys for Petitioners

GREGORIO NGIRAIWET, MAYA V. IRIONDO
SIMEK and NATHAN PLOESSER, on behalf of
themselves and all other similarly situated
individuals

Gregorio Ngiraiwet, et al. v. David Ige, et al., SCPW-____; In the Supreme Court of the State of
Hawaii; PETITION FOR EXTRAORDINARY WRIT PURSUANT TO HRS SECTIONS
602-4, 602-5(5), AND 602-5(6) AND/OR FOR WRIT OF MANDAMUS

36
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this date I caused a true and correct copy of the foregoing
document to be served on the following persons, in the manner described below, at their last-
known address:

U.S. Mail Hand Deliver E-Mail

CLARE E. CONNORS ☐ ☐ ☒
Attorney General of Hawaii

NICHOLAS M. MCLEAN
Deputy Solicitor General
LI-ANN YAMASHIRO
Deputy Attorney General
Department of the Attorney General
State of Hawaii
425 Queen Street
Honolulu, Hawaii 96813
nicholas.mclean@hawaii.gov
li-ann.yamashiro@hawaii.gov

Attorneys for Respondents

DAVID IGE, Governor, State of Hawaii;
ANNE E. PERREIRA-EUSTAQUÍO, Director,
State of Hawaii, Department of Labor and
Industrial Relations

DATED at Honolulu, Hawaiʻi, September 28, 2020.

/s/ J. Blaine Rogers

PAUL ALSTON
J. BLAINE ROGERS

Attorneys for Petitioners

GREGORIO NGIRAIWET, MAYA V. IRIONDO
SIMEK and NATHAN PLOESSER, on behalf of
themselves and all other similarly situated
individuals