Lang v. Director, Ohio Department of Job & Family Services

LANG, Appellee, v.

DIRECTOR, DEPARTMENT OHIO OF JOB AND FAMILY (Three Cases)

SERVICES, Appellant. Servs., Lang Dept. v. Family [Cite Job & App.3d 196 Ohio 2011-Ohio-4327.] Ohio, Appeals Court of District, County. Third Seneca 13-10-33, Nos. 13-10-34 and 13-10-35. Aug.

Decided vice, McHugh, Dawicke, Richard W. hac pro and Jason E. for appellee. Baum, Eric A. for appellant.

Shaw, Judge. Appellant, the Director of the Ohio of 1} Job and Family

{¶ (“ODJFS”), Services appeals judgments County Seneca Court Common Pleas finding appellees, James A. H. Lang, Teddy and Mark Sharp, A. Laibe, entitled to receive alternative-trade-adjustment-assistance benefits. Appellees together worked at Tiffin, American 2007, Standard Ohio. In appellees were notified their employer positions that their would be terminat- facility ed because the Tiffin was closing jobs and their moving were abroad. Lang and Laibe’s last day employment with American Standard was December 21, 2007. Sharp’s 22, last day was December 2007.1 Seneca County Department (“SCDJFS”) of Job and Family Services arranged mandatory workers, workshops to inform appellees, affected like federal and state to programs designed alleviate the job displace effects their ments. In these informational meetings, appellees of trade-adjustment- learned (“TAA”) assistance programs, 1974, which were established the Trade Act of 19, U.S.Code, Section 2101 et Title seq., to intended “assist workers who have unemployed become due effects of Emps. international trade.” Former separation” 1. This date is referred to as the "date employer. from the (Ct.Int.Trade Co., Labor Dept. States Inc. v. United Castings Indep. Steel 2007), *1. 2007 WL imple TAA program particular a participate chose Appellees

4}{¶ 107-210, No. 116 Stat. Act Pub.L. TAA Reform through the mented (“ATAA”) This alternative-trade-adjustment-assistance provides which “a wage by providing displaced older workers assist designed program wage than at lower reemployment obtain quickly who subsidy for such workers Co., at *1. Castings Emps. Indep. Steel earned.” Former they previously what they meet certain eligible are receive program Workers reemployed by they at least 50 old become criteria, are including prior from their separation weeks of the date of within 26 employer different displaced Once approved, U.S.Code. employer. See Section the wages half difference between to receive up worker be entitled previous employment. and their through their earned separation time of their old were each Appellees reemploy- found Appellees subsequently in December 2007., American Standard than significantly they less where earned employer, ment with different reem- finding 50 after Appellees each attained did American Standard.2 the ATAA on June program their date of but before last ployment 21, 2008.3 upon representative each told of SCDJFS Appellees were Accordingly, ATAA each

attaining age they would Appellees his birthday application. after his 50th to file appellee waited until benefits, they forgo would by electing to receive were also informed them a result of of TAA available to as types their for other eligibility case, appellees filed their from American Standard. each separation their within the age ATAA after but wage turning to receive subsidies applications timeframe. 26-week benefits, stating for appellees’ applications ODJFS denied ” as the reemployment 50 at the time age “had not reached added.) filed separate each re- (Emphasis Appellees reason for the denials. ODJFS, granted and resulted with which were

quests for redeterminations crew, 21, 2008, Sharp Township was April by the Clinton road Lang reemployed 2. was on 28, 2008, Tire, reemployed March January by Cooper and Laibe on reemployed on was 2008, by Electric. National Carbon 6, 2008; 30, 2008; May 2008. We May Sharp and Laibe on June Lang on turned on day was eligibility ATAAbenefits June Sharp that his last note that the record indicates Laibe, 21, 2008, application though day Lang even he stated on his benefits the same 22, 2007. separation American Standard was December that his date of reaffirming prior ODJFS’ its denying appellees determinations ATAA wage- subsidy Appellees benefits. separately appealed ODJFS redeterminations to (“review commission”). Unemployment Compensation Review Commission Lang’s April case was first. heard On the review commission

8}{¶ hearing counsel, with conducted his and a Lang, representative At ODJFS. hearing, representative benefits, the ODJFS that in explained denying Lang relied upon ODJFS the United States Training of Labor’s (“TEGL”) Employment Guidance Letter No. 2-03. No. TEGL 2-03 states that an individual must meet certain criteria to eligible be for ATAA ” including that the individual “at age least 50 at the time reemployment. added.) (Emphasis argued Lang that nowhere in the text of Section U.S.Code does it require individual to be at the Rather, order for ATAA language requires simply that the individual be at least 50 of age when he elects she to receive ATAA The review agreed commission with 24, 2009, on Lang’s argument, and it June reversed the determination ODJFS Lang and found that was entitled receive ATAA benefits. appealed the decision. The review commission subsequently

issued notice to his Lang attorney vacating its decision. The notice provided action, no stated, reason this but simply appears “It that the review commission’s decision must be vacated and set aside order that a new hearing may be held.”4 At subsequent hearing, this the review explained commission one of purposes for the hearing supplement second was to the record with additional

information not in evidence at the prior hearing. ODJFS introduced two exhibits into the record. The first Adjustment was titled “Trade Assistance Program Cooperative Annual Financial Agreement,” which agreement is an between the United States Department of Labor and governor’s the Ohio office agreeing to certain follow directives of agency, including TEGLs. The second was titled “Standard Assurances and Adjustment Certifications for the Trade Assistance (TAA) Program Annual Cooperative Financial Agreement for Fiscal Year 2008 Funds,” which set out rules that the state must in' comply with order to receive grant money from the United States Department of Labor to fund the TAA programs. agreements Both signed by were Secretary United States notice, 4. The record immediately indicates that preceding the issuance ODJFS sent commission, including various documents the review April to an agreement between office, Department the United governor's States of and Labor the Ohio in the which ODJFS purportedly agreed comply to Department with the issued TEGLs the of Labor in implementing programs. Notably, its TAA none of these were Lang documents served on or attorney prior his the vacating to review commission's previous awarding notice the decision Lang ATAAbenefits. of testified The ODJFS representative of ODJFS. the then director Labor and to receive allowing Lang its entered decision that after the review commission that ODJFS requested of Labor Department ATAA the United States appeal an of that determination. file its commission entered evidentiary hearing, the review After this second

{¶ 11} decision, the of its review support ATAA denying Lang decision of and the director ODJFS signed agreements between commission found the The review commission dispositive. Secretary Labor to be United States implemented by agreed guidelines to follow that ODJFS concluded opinion, In the review Labor, No. 2-03. including TEGL Department Program of the Trade Assistance the “existence explained commission the representative was unknown to Agreement Annual Financial Cooperative [previous] Family appearing and Services Ohio Job Accordingly, the review commission Officer.” hearing Hearing and also [to] was ATAA because he was not to receive benefits Lang concluded that 2- TEGL No. age reemployment, required by at the time of his years not 50 he the ATAA benefits Lang immediately repay The decision also ordered him ATAA to draw prior allowing since the decision had received favorable their occurred appeals Laibe’s ODJFS determinations Sharp’s and in the The review Lang its decision case. after the review commission rendered to affirm the determinations reasoning Lang’s relied on its case commission were not 50 Sharp they ATAA Laibe because denying reemployed. old at the time were County Court of separately appealed All three cases were Seneca forth in R.C. procedure set pursuant administrative-appeals Common Pleas on behalf of appearance entered an Attorney 4141.282. General cases for the of oral purposes The trial court consolidated the three ODJFS. 10, 2010, in the the trial court issued its decision cases. argument. August On establishing program statute the ATAA The court reviewed federal following: concluded the filing all the to the statute mandates that

Strict adherence met, applicant eligible. ATAA were then an requirements [for benefits] * * * arbitrary not an Awarding appellants the three ATAA benefits is very but an basic inconsistent distribution of funds adherence * * * Therefore, the manifest Congress enacting the statute. purpose evidence, met both the law, appellants and reason find that weight of of 50 at his or her a worker under the requirement age statutory must within weeks obtain separation ATAA benefits. be 50 order receive separation 86 trial The court further the statutory reasoned under interpretation 14}

{¶ TEGL, offered the workers in this needlessly case would have been searches or required postpone job even lose opportunities for many weeks in order to wait until turned they years 50 to maintain their for TAA all appellants

Given that have 50 years three would turned old within the 26 allotted they weeks were the statute to regain reemployment, had the week, appellants begin reemployment waited to until they the 26th when would years age, have been 50 appellants would have met all the requirements appellants’ received benefits. The in finding initiative reemployment not preclude should them from receiving benefits intended for in workers their position. Accordingly, the trial court found the review commission’s decision to be against

unreasonable and weight manifest of the evidence and reversed the appellees commission’s determination that were not entitled appeal, ODJFS filed this assigning following assignment 16} of error. ASSIGNMENT OF ERROR Courts must defer administrative agencies’ reasonable interpretations of Here, 2318(a)(3)(B)(i) § statutes. 19 provides U.S.C. benefits for certain 50- year-old jobs individuals who lose their and subsequently accept lower-paying The positions. U.S. of Labor interprets the statute as requiring years individuals be 50 reemployment. old The trial court in ignoring erred interpretation and awarding benefits to appellees, who not were 50 old the time began reemployment. Initially, we note that statutory presents construction legal

issue that (1996), we review de novo. v. State Wemer App.3d 677 N.E.2d 1258. first rule of statutory construction is statute that is unambiguous and definite on its face is to be applied as written and not Id., construed. citing (1995), ex State rel. Herman v. Klopfleisch 72 Ohio St.3d 651 N.E.2d 995. Courts must give effect to the expressly words used in used, statute rather than deleting used, words or inserting not words order interpret an unambiguous (1995), statute. v. Taniguchi State 74 Ohio St.3d 656 N.E.2d (¶ The federal statute at provides: issue

A worker that the group Secretary [of Labor] has certified as for the adjustment alternative trade assistance program elect to receive under the alternative trade adjustment program assistance worker—

(i) A of this part; under subpart a certification is covered separa- the date (ii) more 26 weeks than obtains after adversely employment; tion from affected

(in) age; is at least

(iv) $50,000 wages reemployment; year more than earns not in in law the State (v) on a full-time basis as defined State is employed employed; the is which worker separat-

(vi) from which the worker was employment to the does not return ed. added.) 19, U.S.Code.5 Section

(Emphasis enacted, an 6, 2003, ATAA assistant a after was year On August to all sent TEGL No. 2-03 of Labor secretary States the United 2-03, The of TEGL No. programs. purpose in TAA agencies participating state letter, imple- instructions for operating in is “transmit interim the as stated (ATAA) for Older Workers alternative-trade-adjustment-assistance the menting Act of 2002.” Adjustment Assistance Reform by the Trade Program established apply for who seek to for criteria workers Regarding the 2-03 TEGL No. states: ATAA, following conditions an individual must meet the To be eligible time reemployment: the can age Be The individual’s age reemployment. at least at the time of documentation. appropriate

be verified with a driver’s license other last the 26th after the worker’s day 2. Obtain the week This reem- employment. from the certified qualifying separation TAA/ATAA or a stub. copy job the offer letter check may be verified with ployment $50,000 annually gross wages expected to earn more than 3. Must not be (excluding pay) paycheck has been reemployment. overtime a supporting submit employer at the time of must application, issued $50,000. wages that annual will not exceed indicating statement is the state law where worker 4. Be full-time defined reemployed in the manner as is used will be conducted same employed. The verification determining [Unemployment Insurance] was from which worker 5. Cannot return work division/facility Thus, cannot to the same the worker return separated. appellees applied for ATAAbenefits. of the at the time 5. This was the version statute effect becoming with the latest version acknowledge that the statute was amended in We however, 17, 2009; eligibility requirements for ATAA remain February effective on substantively the same. separated from nor can do was the worker the same or similar work for he/she was from in employer separated another division/facility. he/she added). (Emphasis In comparing statute, TEGL No. 2-03 with the federal we note that the

eligibility requirements part congruent, are for most one exception. with 2-03 TEGL No. deviates from the federal statute a worker to requiring least 50 age at the time he or she elects receive ATAA requirement instead announces new mandating be 50 years worker old at the It reemployment. interesting to note that at administra- level, tive initially the review commission with agreed interpretation of the statutory language granted commission subsequently itself, not any reversed based upon statutory reconsideration language or 2-03, solely merits of TEGL but based upon discovery aforemen- agreements tioned financial purporting to link federal funding these cases to promise by the ODJFS to follow the TEGL guideline letters. However, on appeal, ODJFS now agency’s age-50-at- defends the

{¶21} reemployment requirement 2-03, announced in TEGL No. asserting that 2318, 19, U.S.Code, Section Title key is “silent on the question of when sic.) individual must have 50.” (Emphasis argues turned that this “silence” renders the federal statute on an individual’s for ambiguous i.e., that language 2318, 19, in Section contained Title U.S.Code — is subject more than Thus, one reasonable interpretation. ODJFS now Department maintains that the of Labor the ambiguity by resolved implementing the age-50-at-reemployment requirement in TEGL No. 2-03. addition, In argues ODJFS further that Congress specifically

{¶ 22} delegated the administration ATAA Department Labor therefore made it solely responsible for the all policy “resolution of that disputes Congress did not resolve itself.” ODJFS contends that because the issue of when an individual turn must 50 to qualify ATAA benefits is ambiguous under the statute, U.S.A., federal the trial court was mandated Chevron Inc. v. Natural Council, (1984), 837, Resources 844, Inc. 467 2778, U.S. 104 S.Ct. 81 Defense L.Ed.2d Department to defer to the interpretation Labor’s reasonable unless is, statute that interpretation arbitrary, capricious manifestly contrary to the statute. we acknowledge longstanding While principle of deference under

Chevron, we do not this applicable believe that is principle to the federal statute at initially issue. We note that the Supreme United States Court Chevron held that a give court must an agency’s regulation effect to containing reasonable interpretation 842-844, of an at ambiguous statute. Id. 104 S.Ct. 81

89 case, presented interpretation Labor’s L.Ed.2d however, force letter, dispositive not qualify does guidance in an internal v. Conservation Dept. Environmental See Alaska in Chevron. described (2004), 124 S.Ct. U.S. Agency Protection Environmental 576, 587, 120 (2000), 529 U.S. 967; Cty. v. Harris see also Christensen L.Ed.2d * * * policy such as those in (“Interpretations 1655, 146 L.Ed.2d S.Ct. lack the manuals, all of which guidelines, statements, and enforcement agency deference”); accord States v. Chevron-style United not of law—do warrant force 218, 234, 121 2164, 150 (2001), L.Ed.2d 292. S.Ct. Corp. Mead 533 U.S. explained Court Moreover, as Supreme the United States a statute

Chevron, to an agency’s interpretation must defer whether court question directly spoken precise has “Congress on whether depends first matter; clear, for the that is the end of Congress intent is issue. unambiguously expressed court, give as the must effect agency, well Furthermore, are “required apply plain courts Congress.” intent of Id. Manton, 125 unambiguous.” Jaques it is v. of a statute when clear language ¶ 434, 14; 342, 2010-Ohio-1838, Kneisley see also v. 928 N.E.2d St.3d (“Absent (1988), 354, 357, 533 N.E.2d 743 Co. 40 Ohio St.3d Lattimer-Stevens way enlarged any to be or construed in other statutory ambiguity, language demand”). its than which words language Section reviewing plain

U.S.Code, an individual must for the when ambiguity question we find no Rather, clearly for ATAA benefits. the statute states attain 50 to be eligible adjustment under the alternative trade that a worker elect to receive benefits Therefore, age. it is worker is at least 50 program assistance silent, contends, but is not as ODJFS demonstrates statute apparent old an must be least 50 Congress directly has when individual spoken it is time the individual under the ATAA and at the provisions to be to elects receive benefits. statute, para that in a a court’s construing We further note intent, legislative In to legislative

mount concern is the intent. order determine and the to be statutory language purpose court the applicable the reviews 53, 2007-Ohio-5589, 876 St.3d accomplished. Hasenjager, Fisher v. 116 Ohio ¶ legislative reaffirmed its intent Congress recently 20. has N.E.2d provisions establishing the ATAA benefits: enacting 2009 amendments to the Labor, Commerce, Congress It is sense Secretaries of of (relating subchapter 2 this part should Agriculture apply provisions workers), to (relating 3 of part subchapter this adjustment to assistance for to firms), (relating adjust- this part subchapter for adjustment assistance communities), ment assistance for 6 of part subchapter this to (relating farmers), adjustment respectively, regard assistance with the utmost workers, firms, communities, interests and farmers petitioning for benefits such parts subchapter. under this added.) 2397a,

(Emphasis Section Title U.S.Code.6 Congress had a to implement age-50 requirement choice at the date of separation, the date of reemployment, or date that the individual elects to by latter, receive ATAA Clearly, choosing Congress full gave effect to apply its intention to ATAA provisions regard with the utmost for the by selecting interests the worker age requirement the least restrictive to determine worker’s eligibility. Moreover, benefits, to specifically respect with Congress delegat-

ed to the Department authority Labor the such “prescribe regulations as added.) necessary carry provisions out the part.” (Emphasis Section Title U.S.Code. of our light conclusion that the federal statute setting forth the eligibility requirements for ATAA benefits is not but ambiguous, clearly that an states individual must be least 50 of electing benefits, the time to receive ATAA requirement the new placed on ATAA eligibility by TEGL No. 2-03 is only unnecessary carry out ATAA provisions but is manifestly contrary also of the statute. language being Aside from inconsistent with the federal statute establishing eligibility requirements for receiving ATAA the decision of the review commission to follow TEGL No. 2-03 solely based on the ancillary financial agreements with the also Labor subverts Congress’s directive implementing the appellate-review process agency’s state determination of TAA benefits. Congress explicitly established the procedure to be used when reviewing benefits by determination agency: state A determination a cooperating State Agency respect with to entitlement to program benefits under an agreement subject review the same manner same extent as determinations under the applicable State only Law and in that manner and to that extent. 2311(e),

Section Title U.S.Code. The legislation federal further defines law” “state as meaning {¶30} “the unemployment insurance law 2319(10), of the State.” Section U.S.Code. appellate procedure for unemployment-compensation determinations is 4141.282(H). established R.C. As shown procedural posture Notably, amendments, in enacting Congress unchanged language left stating that an individual be must at least 50 at the time he or she elects to receive ATAA benefits, despite the fact that No. TEGL 2-03 been years. has in circulation for almost six at the rights her case, appellate his or has exhausted party instant once and the the director ODJFS review both through level administrative Commission, the party may appeal then Review Compensation Unemployment In R.C. 4141.282. to pleas pursuant the of common decision to court agency’s 4141.282(H) to used the be appellate procedure the R.C. establishes particular, agency’s unemployment-compensation the reviewing of common pleas court determinations: by the provided the record appeal on certified court shall hear the the commission was the the court finds that decision

commission. evidence, it unreasonable, shall unlawful, weight manifest against or decision, matter to the commis- reverse, vacate, or remand the modify or Otherwise, affirm the decision the commission. the court shall sion. standard applies court same appeal, appellate further an Upon Unemp. Comp. Rev. Lemaster v. pleas. as court of common of review ¶ 10, 9-06-30, 2007-Ohio-771, citing Comm., 2007 WL Dist. No. 3rd (1995), 73 Ohio Emp. Bur. Servs. St.3d Tzangas, Plakas & Mannos v. Ohio however, the review commission’s role In reviewing, N.E.2d 1207. so intact, minds reach different and the fact that reasonable fact-finder remains Tzangas at the commission’s decision. reversing is not a basis for conclusions N.E.2d 1207. construction, Nevertheless, one of statutory when the issue is law, pleas appellate common court and both the presents question which that the trial court By arguing de review. plenary powers court novo exercise 2-03, have to No. which we determined and court are bound to follow TEGL it of the statute claims manifestly contrary express language Labor, Department that the interpret, essentially asserting is ODJFS this state’s letter, the role of permitted unilaterally supersede mere is guidance by both federal claims as established judiciary reviewing TAA-benefits agreements financial between further to assert that the state law. ODJFS seems permit of Labor also governor’s office and 2311(e), express provisions Sections contractually supersede bypass 2397(a), 19, U.S.Code, statutory as well as the standards commission, system ODJFS, and the state-court for both the the review of review 4141.282(H). reject assertions. under R.C. We these Chevron, ultimately, “judiciary noted that Supreme Court reject construction must administra- statutory on authority the final issues court, If a clear intent. congressional contrary tive constructions which are construction, that Congress ascertains statutory traditional tools of employing issue, the law and that intention is precise question an had intention on (Citations omitted.) Chevron, 843, 104 467 U.S. at S.Ct. given must be effect.” fn. 81 L.Ed.2d 694. after Accordingly, reviewing the federal statute at issue, we conclude on review commission’s reliance TEGL No. 2-03 unlawful, denying unreasonable, was appellees benefits against and weight manifest who Appellees, evidence. were all 50 of age at the they time that elected receive the met requirements set statute, forth the federal by and are entitled to receive ATAA wage-subsidy sum, we concur the original with decision {¶ review commission 34} subsequent determination the Seneca Court County of Common Pleas. We would further observe that even the financial agreements were somehow valid, deemed our decision necessarily is not with agreements. inconsistent those words, In other may ODJFS that in believe order to federal funding, receive it is obligated to comply agreements. so, with the terms of these it then has fully complied agreements with by those following No. TEGL 2-03 in this case. However, that not guarantee does that the decision of ODJFS to follow any particular TEGL will be on reversed appeal system the state-court when the TEGL that is followed determined pleas common court or the state court of appeals contrary to law. While we acknowledge that the court trial arrived at

{¶ 35} its conclusion to award appellees ATAA way of different reasoning, we find no error in the trial court’s ultimate decision that appellees met eligibility requirements 2318(a)(3)(B), Section Title U.S.Code and are entitled to draw ATAA For all reasons, these assignment ODJFS’s overruled, of error is the judgments of the Seneca County Court of Common are Pleas affirmed.

Judgments affirmed. J., concurs. Willamowski, P.J.,

Rogers, dissents.

Rogers, Presiding Judge, dissenting. Although I understand the logic of the well-reasoned opinion majority, interpret I the statute differently and must therefore dissent. The statute at issue defines who elect to receive benefits. Section U.S.Code. This definition qualifications contains six recipients, thru numbered i vi. i general Number is a requirement; certification number ii is the requirement that the individual “obtain reemployment not more than 26 weeks after the date of separation from the adversely affected employ- ment”; iii, number here, the term at issue that the requires individual be “at least more than earn “not that the individual requires iv age”; number requires v number $50,000 reemployment”; year wages that the basis”; vi requires and number a full-time on “employed individual be separated.” the worker was from which “not return individual ii whole, requirements I find it obvious section as a Reading reemployment. the individual obtains at the time vi must be determined iv thru must be addressed: issues following (ii) separation?; since passed have 26 weeks $50,000

(iv) per year?; or less rate of pay the worker to receive is (v) position?; reemployment is the a.full

(vi) prior employment. returning prohibited the worker is require- to determine compels then me interpretation Consistency well. iii time of number at the ment Therefore, the worker requiring I the statute as read ODJFS, with the determination consistent reemployment, at the time of correct, of the trial the decision my interpretation and TEGL No. 2-03. correct, I Furthermore, then is not my interpretation court must be reversed. to more than one subject it is ambiguous that the statute is because argue would 2-03 then and the decision applies, that TEGL No. interpretation, rational from the opinion I must dissent Accordingly, still be reversed. trial court must majority. FLYNN, Appellant,

v.

FLYNN, Appellee. Flynn Flynn, v. App.3d 2011-Ohio-4714.] 196 Ohio [Cite as Ohio, Appeals Court of District, County. Butler Twelfth No. CA2011-01-002. Sept.

Decided

Case Details

Case Name: Lang v. Director, Ohio Department of Job & Family Services

Court Name: Ohio Court of Appeals

Date Published: Aug 29, 2011

Citation: 962 N.E.2d 357

Docket Number: 13-10-33, 13-10-34 and 13-10-35

Court Abbreviation: Ohio Ct. App.