Last week I filed a lawsuit against the Virginia Employment Commission.
They seem to have developed an illegal administrative procedure called “Vacate” and have used it twice on my claims for unemployment benefits. This goes back to the summer of 2020. I fought them in federal court in 2022 and had them in state court earlier this year (2023). I had a lot of trouble finding a lawyer to take the case and have been representing myself pro se.
Update: I lost the case.
I won the Judicial Review in state court in August, but that was only to determine if they had processed my claim properly. There is no possibility of punitive damages being accessed in a Judicial Review. Update: Under Virginia law, it’s impossible to get any kind of punitive damages from the government itself. Only its employees would be liable for punitive damages, and they still have immunity from simple negligence.
Now, after careful consideration, I’ve decided to file a lawsuit seeking compensatory and punitive damages both for myself and for everyone else whose claims have been “vacated”. I’ve been in court enough to know that I’m at a serious disadvantage representing myself without a lawyer, but I’ve also learned that in the American legal system, litigants are generally not liable for opposing legal fees, even if they lose. This means that all I really have to lose is my own time and effort.
Of course, if it goes up on appeal, then I may become liable for opposing legal fees. Update: No, I think you only become liable for the costs of the appeal, but that can be significant (see below).
I fully expect that it will go up on appeal, because what I’m trying, a class action lawsuit against the government on behalf of everyone harmed by an illegal administrative procedure, has basically never been tried before in Virginia state court.
Update: I lost the case in Circuit Court, and decided not to appeal, mainly because I made a procedural mistake and expect that I would have lost the appeal on a technicality. More specifically, I agreed to allow two motions to be heard at once in a single hearing, lost them both, but only made a substantive objection to one of them. Fifteen minutes later I realized my mistake, but it was too late by them. Making a substantive objection is something that all the law books emphasize, and I thought I had, but realized later that I had lost two motions but only had a single appeal point.
Also, I didn’t realize that the strategy I was trying to use to create a class action had been tried and rejected by my local Circuit Court several years before, but the law books did not reflect this, even though they had been updated several years after that earlier case. The defense, of course, found that case. After I filed my case, the Democratic controlled legislature passed a bill to create a class action procedure in Virginia state courts, but the Republican governor vetoed it. If that bill had become law, I would have withdrawn my complaint and refiled it using the new procedure.
I probably lost it at the ideal moment – right when it was about to start costing me money. I had successfully petitioned the court to waive the filing fees, but the appeal would have cost $400 to $1,000, starting with $300 for a transcript of the hearing, a $50 filing fee, and a $500 appeal bond.
It was quite a learning experience, though I wonder if I’ll ever use the knowledge that I gained. I did not realize how extensive is the government’s protection against liability. They have total immunity against simple negligence. They’re technically liable for intentional violations of the law, but how can you prove that their violations are intentional? Maybe if you could put the government employees under oath in a deposition, but you have to establish standing before the Court to get to the point where you’re allowed to do that. That was the point of the second motion that I lost, the Plea in Bar, the one that I neglected to lodge an objection to.
Really, why should any immigrant care if they come to this country legally or not if the government can get away with Vacate?
Here’s a copy of the complaint, with personally identifying information redacted: