No. 20

- 0192, Everett Frazier, Commissioner, West Virginia Division of Motor Vehicles v.

Joshua Derechin

Armstead, Justice, concurring in part and dissenting in part:

The majority opinion decides two things : first

, that the circuit court had

sufficient evidence to conclude that Mr. Derechin was actually and substantially prejudiced

when the Office of Administrative Hearings (“OAH”) took nearly four year s to render a

decision on his license revocation and, second

, that the circuit court err ed when it ordered

the Division of Motor Vehicles (“DMV”) to pay Mr. Derechin’s attorney fees and costs

pursuant to our decision in Reed v. Conniff , 236 W. Va. 300, 779 S.E.2d 568 (2015). For

the reasons stated in the majority opinion , I agree that the circuit court’s award of attorney

fees and costs should be reversed. However, because I believe that the circuit court lacked

sufficient evidence to conclude that OAH’s post

- hearing delay actually and substantially

prejudiced Mr. Derech in, I respectfully dissent.

As an initial matter, I agree that OAH had a responsibility to decide Mr

.

Derechin’s case promptly and that taking nearly four years to issue a decision is too long

.

Syl. Pt. 4, Miller v. Moredock , 229 W. Va. 66, 726 S.E.2d 34 (2011)

. However, as the

majority observes, “delay in and of itself

— even a substantial one

— is insufficient to

establish a due process violation[.]” As we noted in Straub v. Reed , 239 W. Va. 844, 850,

806 S.E.2d 768, 774 (2017) , patently unreasonable delay does not furnish a basis for relief

unless “prejudice flowed from” it. Ibid. (quoting In re Petition of Donley , 217 W.Va. 449,

452, 618 S.E.2d 458, 461 (2005). Because of this, the majority holds, and I agree, that a 

### FILED

November 18, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 driver who “ asserts that his or her constitutional right to due process has been violated by

a delay in the issuance of the order by the Office of Administrative Hearings

. . . must

demonstrate that he or she has suf fered actual and substantial prejudice as a result of the

delay. ” Syl. Pt. 2, in part, Reed v. Staffileno , 239 W. Va. 538, 803 S.E.2d 508 (2017)

.

However, I respectfully disagree with the majority because I do not believe that Mr.

Derechin made this essential showing of actual and substantial prejudice as a result of the

delay

.

It is worth noting that the standard is “actual and substantial prejudice” and

prejudice that is “a result of the delay .” Ibid. (emphasis added). I n other words, i t is not

enough for the driver to suffer some real prejudice; t he prejudice must also be substantial

.

Furthermore, the prejudice must be caused by the delay. Prejudice that flows from the

revocation itself does not constitute prejudice “as a result of th e delay [,] ” even if it is

substantial.

According to the circuit court, Mr. Derechin needs a license for his job.

P ublic transportation is not a “realistic” option for Mr. Derechin to arrive at work , and he

is “regularly sent considerable distances on assignments by his company both in

- state and

out

- of

- state.” Obviously, under these circumstances, the loss of Mr. Derechin’s driver’s

license could pose a problem for him . However, he would have faced this problem even if

OAH had issued a decision the day after the hearing. As the Supreme Court of

Pennsylvania has observed, this kind of hardship, “ while perhaps prejudicial in itself, is an

ordinary part of the governing statutory framework. ” Dep ’ t of Transp

. , Bureau of Driver3 Licensing v. Middaugh , 244 A.3d 426, 438 (Pa. 2021) . Again, prejudice that flows from

the revocation itself does not violate due process, even if the prejudice is substantial,

because it does not occur “ as a result of the del ay. ” Staffileno , 239 W. Va. at 540 , 803

S.E.2d at 510 , syl. pt. 2, in part.

Thus, t he question becomes what changed for Mr. Derechin between the

OAH hearing and the issuance of the OAH final order. According to Staffileno , proving a

due process violation “ordinarily” requires a driver to show a change in circumstances.

239 W. Va. at 543, 803 S.E.2d at 513 (“ As a general matter, under Miller the standard for

post

- hearing prejudice will ordinarily involve some type of change in a party ’ s

circumstances that may have been substantially prejudiced because of the delay in issuing

a final order by OAH. ”). However, subsequent cases suggest that showing some type of

detrimental change is essential. In Reed v. Boley , 240 W. Va. 512, 517, 813 S.E.2d 754,

759 (2018) , we reversed a circuit court’s finding of prejudice because the driver failed to

“ specifically identif [y] some type of detrimental change in his circumstances that was

related to the delay in OAH issuing its final order [.]”

L ike the circuit court, the majority finds sufficient evidence of a detrimental

change in Mr. Derechin’s divorce

, reasoning that because OAH conducted the hearing in

August 2015 and Mr. Derechin divorced his wife sometime in 2016

, a decision from OAH

“even a year after the hearing” would have allowed Mr. Derechin’ s ex

- wife to meet his

transportatio n needs while the revocation was in effect

.4 Divorce is certainly a change in circumstances, but this change is unlike the

change we found sufficient in Staffileno

. In Staffileno

, we observed that, “ [i] n essence, the

circuit court determined that Mr. Staffileno would not have retired when he did

. . . if OAH

had issued a timely decision. ” Staffileno , 239 W. Va. at 543, 803 S.E.2d at 513 (emphasis

added). In light of that determination, Staffileno found it “ obvious

. . . that as a result of

Mr. Staffileno ’ s change in employment, he [would] suffer substantial and actual prejudice

by the imposition of the untimely decision by OAH

. ” Id. at 543

– 44, 803 S.E.2d at 513

–

14

. In this case, however , t here is no evidence that Mr. Derechin ended his marriage as a

result of or in reliance on OAH’s post

- hearing delay.

In addition, t hough Mr. Derechin may have lost in the divorce a back

- up

driver in the person of his ex

- wife, he seems to have gained a back

- up driver in the person

of his girlfriend. The circuit court found that Mr. Derechin’s

g irlfriend, who does not live with him, had recently been

staying with him temporarily to drive him locally if needed,

which would not b e a long

- term solution. She is employed and

travels in her work for the West Virginia Primary Care

Association far outside the Charleston area.

Elsewhere, the circuit court explained that the girlfriend “temporarily stayed with him

while he was fearful that the revocation would become effective prior to a stay.”

According to these findings, Mr. Derechin and his girlfriend had a plan to

cope with his revocation. She would move in temporarily and “drive him locally if

needed[.]” The problem, according to the circuit court, was that this arrangement was not5 a “long

- term solution.” W hat the circuit court failed to recognize, however, was that Mr.

Derechin did not necessarily require a long

- term solution because

, a ccording to the

February 22, 2013 notice of revocation, Mr. Derechin was facing only a fifteen

- day

revocation if he participated in the West Virginia Alcohol Test and Lock Program and

applied for an ignition interlock device. See W. Va. Code § 17C

- 5A

- 2 (j) ( eff. 2012 ) (“ If

the Office of Administrative Hearings finds by a preponderance of the evidence that the

person did drive a motor vehicle while under the influence of alcohol

. . . the

commissioner shall revoke the person ’ s license for a period of six months or a period of

fifteen days with an additional one hundred and twenty days of participation in the Motor

Vehicle Alcohol Test and Lock Program in accordance with the provisions of section three

a of this article [.]”).

Having to make alternate travel arrangements for fifteen days is not a long

term problem that requires a “long

- term solution [

, ] ” n or is it the sort of “ substantial

prejudice as a result of the delay ” that entitles him to relief. Staffileno , 239 W. Va. at 540

,

803 S.E.2d at 510 , syl. pt. 2, in part (emphasis added). If Mr. Derechin’s work requires

him to drive to other portions of the state and, indeed, to other states, this travel would have

been an inconvenience to any alternate driver, including his former wife , regardless of

when it occurred and regardless of her work status . T hat inconvenience is primarily and

most importantly a function of the revocation commanded by law , not a function of who6 was available to drive for Mr. Derechin during the fifteen

- day window when he could not

drive himself. 1

For these reasons, I believe that Mr. Derechin failed to show that he was

actually and substantially prejudiced as a result of the post

- hearing delay, and I believe that

the circuit court abused its discretion when it found otherwise and reversed OAH’s

decision . Accordingly, while I concur in the maj ority’s opinion that Mr. Derechin should

not be awarded his attorney fees and costs

, I respectfully dissent from the majority’s

opinion to the extent that such opinion holds that Mr. Derechin was entitled to have his

license revocation reversed and rescind ed

. I concur with the majority opinion to the extent

that it reverses the circuit court’s award of attorney fees and costs to Mr. Derechin.

1 Unlike the circuit court, I am not persuaded by Mr. Derechin’s claimed risk

to “foregone career advancement in his present company and a management position in

another [s]tate.” We considered similar assertions in Straub and found them unavailing

. See 239 W. Va. at 847, 806 S.E.2d at 771 (“ Mr. Straub testified that he was employed as a

pharmaceutical sales representative, and his employer issued notices of potential layoffs

regularly. He further testified that during the time frame between his arrest for DUI and

the administrative hearing, he attempted to secure other employment

. Mr. Straub claimed

that he was interviewed by recruiters, but once they learned that his driver ’ s license could

possibly be revoked, the recruiters would no longer continue his job search. Fortunately,

Mr. Straub ’ s e mployer did not lay him off and he continued working while the matter was

pending. ”).