ROBERT D JORDAN V DEPT OF LABOR & ECONOMIC GROWTH
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STATE OF MICHIGAN
COURT OF APPEALS
DEPARTMENT OF LABOR & ECONOMIC
GROWTH, UNEMPLOYMENT INSURANCE
AGENCY,
FOR PUBLICATION
April 7, 2009
9:00 a.m.
Appellant,
v
No. 280591
Kent Circuit Court
LC No. 05-011956-AE
TRACEY DYKSTRA,
Claimant-Appellee.
DEPARTMENT OF LABOR & ECONOMIC
GROWTH, UNEMPLOYMENT INSURANCE
AGENCY,
Appellant,
v
No. 280592
Kent Circuit Court
LC No. 05-009850-AE
ROBERT D. JORDAN,
Claimant-Appellee.
Advance Sheets Version
Before: Beckering, P.J., and Whitbeck and M. J. Kelly, JJ.
M. J. KELLY, J.
In these consolidated appeals, the Department of Labor and Economic Growth,
Unemployment Insurance Agency (the Agency), appeals by leave granted the trial court orders
affirming the decisions of the Employment Security Board of Review (the Board) granting
federal trade readjustment allowance (TRA) benefits to claimants Tracey Dykstra and Robert
Jordan under the Trade Act of 1974. See 19 USC 2101 et seq. On appeal, we must determine
whether the time limits provided under 19 USC 2291(a)(5)(A)(ii) limit the period within which a
claimant may obtain a waiver of the Trade Act’s training requirement. See 19 USC
2291(a)(5)(C) and 19 USC 2291(c). We conclude that, under the statute’s plain terms, the time
limits provided under 19 USC 2291(a)(5)(A)(ii) do not apply to the waivers permitted by 19
USC 2291(a)(5)(C) and 19 USC 2291(c). Further, because the statute is not ambiguous, the
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Agency had to comply with its terms notwithstanding the contrary interpretation of the federal
Department of Labor (the Department). Therefore, the trial courts did not err when they issued
orders affirming the Board’s decisions. For these reasons, we affirm in both cases.
I. Background, Basic Facts, and Procedural History
A. TRA Benefits
Under the Trade Act, Congress established a program of benefits intended to supplement
state unemployment benefits for workers who have lost their jobs as a result of competition from
imports. See Int’l Union, United Automobile, Aerospace, & Agricultural Implement Workers of
America v Brock, 477 US 274, 277; 106 S Ct 2523; 91 L Ed 2d 228 (1986).
Under the Act’s scheme, a group of workers, their union, or some other
authorized representative may petition the Secretary of Labor to certify that their
firm has been adversely affected by imports. [19 USC 2271 to 2273.] If the
Secretary issues a certificate of eligibility for such a group, workers within that
group who meet certain standards of individual eligibility may then apply for and
receive TRA benefits. These benefits are funded entirely by the Federal
Government, as is the cost of administering the program. [Id.]
Although the Trade Act requires the Secretary of Labor to make the initial certification,
the Trade Act permits the secretary “to contract out the job of making individual eligibility
determinations to the state agencies that administer state unemployment insurance programs.”
Id.; see 19 USC 2311(a). In Michigan, the Agency has been empowered to make the individual
eligibility determinations. Nevertheless, Congress has charged the Department with the duty of
prescribing regulations necessary to carry out the Trade Act, see 19 USC 2320, and the Agency
is “bound to apply the relevant regulations promulgated by the Secretary of Labor and the
substantive provisions of the Act.” Brock, 477 US at 278.
In order for a worker to be eligible for benefits, the worker must meet one of three
eligibility criteria: the worker must be enrolled in an approved training program, have completed
an approved training program, or have obtained a written waiver of the training requirement.
See 19 USC 2291(a)(5)(A) to (C); see also 19 USC 2291(c). With regard to the first criterion—
enrollment in an approved training program—19 USC 2291(a)(5)(A)(ii) also provides that the
worker must enroll no later than the latest of
(I) the last day of the 16th week after the worker’s most recent total
separation from adversely affected employment which meets the requirements of
[19 USC 2291(a)(1) and (2)],
(II) the last day of the 8th week after the week in which the Secretary
issues a certification covering the worker,
(III) 45 days after the later of the dates specified in subclause (I) or (II), if
the Secretary determines there are extenuating circumstances that justify an
extension in the enrollment period, or
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(IV) the last day of a period determined by the Secretary to be approved
for enrollment after the termination of a waiver issued pursuant to [19 USC
2291(c)].
Congress added these deadlines in 2002, and they are commonly referred to as the “8/16
deadline.” See PL 107-210, § 114(b)(3), 116 Stat 939. The Department explained that the
amendment was designed to accelerate a worker’s reentry into the work force:
To promote adjustment and accelerate reemployment, the Reform Act[1]
provides that eligibility for TRA, which is additional income support after
unemployment insurance (UI) is exhausted, will be contingent on a worker’s
enrollment in training not later than 16 weeks after separation from employment
or 8 weeks after the petition for eligibility has been approved, whichever date is
later. In extenuating circumstances, these deadlines for enrollment in training
may be extended up to 45 days; and a waiver of the enrollment in training
requirement to receive basic TRA may be issued only under limited and specified
conditions. The Reform Act also increased the length of time that TRA is
available to an adversely affected worker who is in training by increasing the
availability of “additional” TRA from 26 to 52 weeks and by further adding up to
26 additional weeks of TRA if a worker is enrolled in a course of remedial
education. The primary purpose of this extended income support is to minimize
workers’ financial hardship until they complete training. By requiring that
workers expeditiously enroll in training as a condition of receiving TRA, the
Reform Act amendments provide that workers will be more likely to complete the
training within the duration of that income support. [71 Fed Reg 50760, 50762
(August 25, 2006).]
To that end, the Department has determined that the deadlines stated in § 2291(a)(5)(A)
apply to the waivers permitted under § 2291(c):
This deadline is either the last day of the 8th week after the week of
issuance of the certification of eligibility covering the worker or the last day of the
16th week after the worker’s most recent total qualifying separation, whichever is
later (commonly referred to as the 8/16 week deadline). The “8/16 week
deadline” applies to eligibility for all TRA, both basic and additional TRA. If a
worker fails to meet the applicable 8/16 week deadline, then the worker is not
eligible for any TRA (basic TRA or additional TRA, including TRA for remedial
training) under the relevant certification. In many cases, the 8/16 week deadline
for a worker will be reached while the worker is still receiving unemployment
insurance (UI). Some workers are not aware that this deadline may apply before
they exhaust their UI. The SWA [State Workforce Agency] is responsible for
informing workers of these requirements. The SWA must also assist such workers
1
PL 107-210, §§ 101 et seq., 116 Stat 939.
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in enrolling in an approved training program prior to the 8/16 week deadline, or
issue the workers waivers prior to the 8/16 week deadline, if appropriate. [Trade
Adjustment Assistance Program, Training and Employment Guidance Letter No
11-02, Change 1, 69 Fed Reg 60903 (October 13, 2004) (emphasis added).]
Thus, under the Department’s interpretation of 19 USC 2291(a)(5)(A) to (C), a worker must
enroll in training or obtain a waiver before the 8/16 deadline in order to qualify for TRA benefits
In the present cases, the Secretary of Labor certified that both claimants’ firms were
adversely affected by imports. Hence, both Dykstra and Jordan were entitled to TRA benefits if
they met the individual eligibility requirements. However, although both Dykstra and Jordan
obtained waivers under 19 USC 2291(c), they did not obtain the waivers within the 8/16 deadline
provided under 19 USC 2291(a)(5)(A)(ii). For that reason, the Agency denied both claimants’
requests for TRA benefits.
B. Tracey Dykstra
Dykstra appealed the Agency’s decision in April 2005. A hearing referee held a hearing
on the matter in June 2005. At the hearing, an unemployment claims examiner for the Agency
specializing in TRA claims testified that Michigan Works!2 was responsible for notifying
employees of their right to receive TRA benefits. The examiner indicated that one method of
notification used with companies that have large numbers of employees who are being laid off
because of foreign competition is to hold an en masse meeting. Dykstra attended such a meeting
after she was laid off, but stated that she was not informed that she needed to fill out Form 802,
which is the request for waiver of the TRA training requirement permitted by 19 USC
2291(a)(5)(C). Dykstra stated that she filed the form only after she learned about it from a
coworker. However, she filed the form after the enrollment deadlines stated in 19 USC
2291(a)(5)(A). The unemployment examiner testified that it was her opinion that Michigan
Works! was at fault for Dykstra’s untimely filing because it failed to timely notify Dykstra of the
need to submit the form. The referee then reversed the Agency’s decision to deny Dykstra’s
application for benefits. The referee reasoned that the failure of Michigan Works! to comply
with its statutory duty 19 USC 2311(f)(1) to notify Dykstra of her eligibility for TRA benefits
under constituted good cause for her untimely application.
The Agency then appealed to the Board, which affirmed the referee’s decision. The
Board determined that Dykstra acted on the faulty advice of a Michigan Works! employee. It
also rejected the Agency’s argument that Michigan Works! was not authorized to act on the
Agency’s behalf.
2
Michigan Works! is an association of local agencies. See MCL 408.113(d). The local agencies
are selected by local workforce development boards, which also oversee the entities’ provision of
workforce services under the Michigan Works One-Stop Service Center System Act, MCL
408.111 et seq. See MCL 408.119 and MCL 408.123. The local Michigan Works! agencies are
authorized to serve as the administrators for state and federal funding provided for workforce
development services and activities. See MCL 408.127, MCL 408.129, and MCL 408.131.
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On appeal in the circuit court, the Agency argued that TRA benefits were only available
to claimants who met the statutory requirements, including the deadlines set forth in 19 USC
2291(a)(5)(A)(ii), and that because Dykstra did not meet the deadlines, she was ineligible for
benefits. The Agency asserted that the Board’s decision was contrary to law and had to be
reversed. It also argued that Dykstra could not use the doctrine of estoppel to expand the
deadlines on the basis of governmental workers’ errors. The circuit court disagreed and
determined that the Agency should be estopped from denying Dykstra benefits when it had failed
to exercise its statutory duty. The Agency moved for reconsideration, which was granted in part
and denied in part. The circuit court vacated that portion of its previous order applying the
doctrine of estoppel, but upheld its previous order to the extent that it awarded Dykstra benefits.
It reasoned that the deadlines stated in 19 USC 2291(a)(5)(A)(ii) did not apply to a waiver
obtained under 19 USC 2291(a)(5)(C) and 19 USC 2291(c).
C. Robert Jordan
After a chance encounter with a former coworker, Jordan discovered that he might be
eligible to receive TRA benefits. Jordan later went to a local Michigan Works! office and
applied for TRA benefits and requested a waiver of the training requirement on the ground that
he was within two years of meeting the requirements for retiring. See 19 USC 2291(c)(1)(C).
Although Jordan obtained his waiver, the Agency denied him benefits on the ground that he
obtained the waiver outside the deadlines imposed by 19 USC 2291(a)(5)(A)(ii). Jordan
appealed the Agency’s decision, and the referee assigned to his case held a hearing in April
2005. The referee affirmed the Agency’s denial of benefits because Jordan did not file within
the statutory deadlines and failed to establish “good cause” for his late application.
Jordan then appealed to the Board. The Board determined that the deadlines in 19 USC
2291(a)(5)(A)(ii) did not apply to the waivers permitted by 19 USC 2291(a)(5)(C). Therefore,
because Michigan Works! had issued Jordan a valid waiver, the Board determined that Jordan
was eligible for TRA benefits. The Board further found the Agency’s argument that Michigan
Works! was not its agent to be disingenuous. Accordingly, the Board reversed the referee’s
decision.
On appeal in the circuit court, the Agency argued that TRA benefits were only available
to claimants who met the statutory deadlines set forth in 19 USC 2291(a)(5)(A)(ii). Because
Jordan did not meet the requisite deadlines, the Agency contended, he was ineligible for benefits.
The Agency also reiterated its argument that the doctrine of estoppel did not apply.
Jordan responded that the Board’s decision was not contrary to law because it correctly
determined that the deadlines in § 2291(a)(5)(A)(ii) applied only to the enrollment provisions of
§ 2291(a)(5)(A)(i). He noted that there was no time requirement under the section applicable to
waivers. He also argued that it would be inequitable to apply a deadline for benefits that he had
not known existed. He asserted that such a result was contrary to the purpose of the law. The
Agency countered that the Board’s decision was contrary to the Department’s interpretation of
the statute, which was entitled to deference.
The circuit court held a hearing on the matter in July 2006. In August 2006, the circuit
court issued an order affirming the Board’s decision.
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D. The Appeals
After the circuit courts affirmed the reinstatement of benefits, the Agency applied for
leave to appeal in this Court in both cases, which this Court denied for lack of merit. See Dep’t
of Labor & Economic Growth, Unemployment Ins Agency v Dykstra, unpublished order of the
Court of Appeals, entered October 16, 2006 (Docket No. 271535); Dep’t of Labor & Economic
Growth v Jordan, unpublished order of the Court of Appeals, entered December 12, 2006
(Docket No. 272634). However, in lieu of granting leave to appeal, our Supreme Court
remanded each case to this Court for consideration as on leave granted. See Dep’t of Labor &
Economic Growth v Dykstra, 480 Mich 869 (2007); Dep’t of Labor & Economic Growth v
Jordan, 480 Mich 869 (2007). This Court thereafter consolidated the appeals.
II. The Statutory Deadlines
A. Standard of Review
Congress has determined that the review of a determination by a cooperating state agency
is to be done “in the same manner and to the same extent as determinations under the applicable
State law and only in that manner and to that extent.” 19 USC 2311(d). This Court reviews “a
lower court’s review of an agency decision to determine ‘whether the lower court applied correct
legal principles and whether it misapprehended or grossly misapplied the substantial evidence
test to the agency’s factual findings.’” Dignan v Michigan Pub School Employees Retirement
Bd, 253 Mich App 571, 575; 659 NW2d 629 (2002) (citation omitted). The circuit court’s
review of the Agency’s decision “is limited to determining whether the decision was contrary to
law, was supported by competent, material, and substantial evidence on the whole record, was
arbitrary or capricious, was clearly an abuse of discretion, or was otherwise affected by a
substantial and material error of law.” Id. at 576. However, this Court reviews de novo the
proper interpretation of statutes, such as the Trade Act. Detroit v Ambassador Bridge Co, 481
Mich 29, 35; 748 NW2d 221 (2008).
B. Principles of Agency Deference
The present case involves the proper interpretation of the Trade Act. As already noted,
the Department has interpreted the Trade Act and determined that the deadlines stated under 19
USC 2291(a)(5)(A)(ii) apply to the waivers permitted by 19 USC 2291(a)(5)(C). Because
Congress has charged the Department with the responsibility of promulgating regulations to
implement the Trade Act, see 19 USC 2320, the Department’s interpretation of the relevant
statutory provisions may be entitled to deference. See Chevron U S A, Inc v Natural Resources
Defense Council, Inc, 467 US 837, 842-843; 104 S Ct 2778; 81 L Ed 2d 694 (1984). As the
Supreme Court explained in Chevron, whether a court must defer to an agency’s interpretation of
a statute depends first on whether “Congress has directly spoken to the precise question at issue.
If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress.” Id.; see also State
Treasurer v Abbott, 468 Mich 143, 148; 660 NW2d 714 (2003). However, if Congress has not
directly addressed the precise question at issue, the reviewing court does not “simply impose its
own construction on the statute . . . . Rather, if the statute is silent or ambiguous with respect to
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the specific issue, the question for the court is whether the agency’s answer is based on a
permissible construction of the statute.” Chevron, 467 US at 843.
This deference follows from Congress’s decision to commit the administration of a
particular program to the agency:
“The power of an administrative agency to administer a congressionally
created . . . program necessarily requires the formulation of policy and the making
of rules to fill any gap left, implicitly or explicitly, by Congress.” If Congress has
explicitly left a gap for the agency to fill, there is an express delegation of
authority to the agency to elucidate a specific provision of the statute by
regulation. Such legislative regulations are given controlling weight unless they
are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the
legislative delegation to an agency on a particular question is implicit rather than
explicit. In such a case, a court may not substitute its own construction of a
statutory provision for a reasonable interpretation made by the administrator of an
agency. [Id. at 843-844 (citation omitted).]
The level of deference is strong; the “court need not conclude that the agency construction was
the only one it permissibly could have adopted to uphold the construction, or even the reading
the court would have reached if the question initially had arisen in a judicial proceeding.” Id. at
843 n 11. Nevertheless, the Supreme Court noted that, ultimately, the
judiciary is the final authority on issues of statutory construction and must reject
administrative constructions which are contrary to clear congressional intent. If a
court, employing traditional tools of statutory construction, ascertains that
Congress had an intention on the precise question at issue, that intention is the law
and must be given effect. [Id. at 843 n 9 (citations omitted).]
Accordingly, the first question that must be answered is whether Congress has spoken on the
issue of a deadline for filing a training waiver.
C. Timing and Waivers
The Agency argues that, because 19 USC 2291(a)(5)(C) is silent or ambiguous with
regard to time constraints, this Court must defer to the Department’s interpretation that the
enrollment deadlines provided under 19 USC 2291(a)(5)(A)(ii) should also apply to the waivers
permitted under 19 USC 2291(a)(5)(C). However, this Court will not read statutes in isolation,
and, after examining the statutory scheme as a whole, see Macomb Co Prosecutor v Murphy, 464
Mich 149, 159-160; 627 NW2d 247 (2001), we do not agree that Congress was silent on the
timing applicable to the waivers permitted by § 2291(a)(5)(C).3
3
We note that the Department is rewriting the applicable regulations, which will be codified at
20 CFR 618, and has recognized that it is possible that Congress did not intend for the deadlines
(continued…)
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A worker does not have to apply for TRA benefits in order to be eligible for training, but
he or she does need to meet at least one of the training requirement alternatives stated in
§ 2291(a)(5) in order to receive monetary benefits. See 19 USC 2291(a); 19 USC 2296; 20 CFR
617.11. Section 2291(a)(5) clearly provides three alternative ways to meet the training
requirement: enroll in training, complete training, or obtain a waiver of the training requirement.
See also 20 CFR 617.11(a)(2)(vii)(A). Although the statute does provide a specific deadline
within which the enrollment alternative must be met, Congress unequivocally provided that the
deadlines stated in 19 USC 2291(a)(5)(A)(ii) were to apply to the “enrollment required under
clause (i).” Likewise, when crafting an extension for extenuating circumstances, Congress
clearly indicated that the extension applied to the “enrollment period.”
19 USC
2291(a)(5)(A)(ii)(III). Hence, under a plain reading, it appears that Congress intended the timing
deadlines stated in § 2291(a)(5)(A)(ii) to apply only to enrollments under § 2291(a)(5)(A)(i).
Further, the provision of a deadline for the enrollment alternative without providing a similar
deadline for the waiver alternative is consistent with the statutory scheme and the purpose behind
the TRA benefits.
(…continued)
stated in 19 USC 2291(a)(5)(A)(ii) to apply to waivers. See 71 Fed Reg 50760 (August 25,
2006). The Department has solicited public comment on this issue:
A related issue, on which the Department seeks public comment, is
whether the deadlines should apply to waivers of the training requirement in the
case of adversely affected workers who do not enroll in training by the applicable
deadline; whether the issuance of a waiver after the deadline has passed can
revive eligibility for basic TRA. The Department’s current position, reflected in
§ 618.725(a) [of the proposed regulations], is that an adversely affected worker
who neither enrolls in training by the applicable deadline, nor receives a waiver of
the training requirement by that deadline, may not become eligible for TRA by
later receiving such a waiver. This position was articulated in the operating
instructions in Training and Employment Guidance Letter (TEGL) No. 11-02,
Change 1 (69 FR 60903 (2004)), which interpreted [19 USC 2291(a)(5)(A)] as
imposing “a deadline by which a worker must be enrolled in approved training, or
have a waiver of this requirement, in order to be eligible for TRA.” However, a
CSA [cooperating state agency] recently brought to the Department’s attention an
alternative reading, based on the structure of the Act, that the applicable deadline
applies only to enrollment in training and not to waivers of the training
requirement. The argument is that the alternative deadlines are contained only in
the Act’s provision on the enrollment in training requirement, [19 USC
2291(a)(5)(A)]; that language in [19 USC 2291(a)(5)(A)(ii)] suggests the
requirement applies only to the enrollment in training requirement in [19 USC
2291(a)(5)(A)(i)]; and that the alternative requirement that the worker receive a
waiver of the training requirement is contained in a separate provision, [19 USC
2291(a)(5)(C)] of the Act. While this argument is plausible, the Department is
concerned that it effectively undermines Congress’ intent that TAA-eligible
[eligible for trade adjustment assistance] workers be quickly returned to work or
quickly provided with the training they need to succeed in the labor market. In
light of this argument, the Department encourages public comments on this issue.
[Id. at 50784-50785.]
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As the Agency aptly notes, the primary purpose of TRA benefits is to assist workers who
have lost their jobs because of competition from imports to quickly return to suitable
employment. See 20 CFR 617.2; see also 19 USC 2102(4). Congress has determined that this
goal can best be accomplished in many cases by retraining the adversely affected worker. See,
e.g., 19 USC 2291(a)(5). In such cases, it makes sense to require the worker to demonstrate a
commitment to be retrained by requiring the worker to enroll in an approved training program
within a specified time. However, Congress also determined that TRA benefits should be paid to
some workers who are adversely affected by foreign competition even without the worker
completing or enrolling in a retraining program. To this end, Congress empowered the Secretary
of Labor to waive the training requirement imposed under 19 USC 2291(a)(5)(A).4 See 19 USC
2291(a)(5)(C); 19 USC 2291(c). And the purpose behind a strict deadline for enrollment in
retraining does not apply equally to cases involving waivers.
A worker can only qualify for a waiver of the training requirement when there are
circumstances that make it “not feasible or appropriate for the worker” to enroll in a training
program. 19 USC 2291(c)(1). These circumstances include situations in which the worker will
be recalled to work, already has marketable skills, will be retiring, or has health issues that
preclude enrollment in an approved training program or when an approved program is
unavailable or the worker has good reason for delaying enrollment. See 19 USC 2291(c)(1)(A)
to (F). Thus, Congress has specifically provided that TRA benefits may be available to workers
who will not participate in a training program. Indeed, in the case of workers who are about to
retire, the worker may never even return to active employment.5 In such cases, a strict deadline
would serve only to deprive workers of the TRA benefits that Congress deemed appropriate.
Further, given that some circumstances that give rise to eligibility for a waiver may not be
known within the deadlines provided under § 2291(a)(5)(A)(ii), application of those deadlines to
the training waivers permitted under § 2291(a)(5)(C) might defeat the purpose behind the waiver
provision. It is also noteworthy that Congress provided limits on the provision of TRA benefits,
which include general limitations on the period within which benefits may be paid to a worker.
See 19 USC 2291(a)(1) (requiring workers to apply for TRA benefits before the expiration of a
2-year period or the termination of certification); 19 USC 2293 (placing substantive limits on the
payment of TRA benefits). Thus, Congress actually provided deadlines for the provision of
benefits that are applicable to benefits paid under a waiver of the training requirement. These
deadlines are consistent with the purpose behind the waiver provision and Congress’s decision to
limit the application of the deadlines stated in § 2291(a)(5)(A)(ii) to the enrollment provision
found in § 2291(a)(5)(A)(i). We further note that Congress crafted specific limitations on the
4
We find it noteworthy that Congress framed this authority as the power to waive “the
requirement to be enrolled in training described in subsection (a)(5)(A),” which is the same
subsection that contains the deadlines. See 19 USC 2291(c)(1). Because the deadlines are
contained in this subsection, when waiving the requirements of § 2291(a)(5)(A), the Secretary of
Labor also presumably waives the accompanying deadlines. This is evidence that Congress
contemplated that the Secretary of Labor might issue waivers even after the deadlines found in §
2291(a)(5)(A)(ii).
5
This is may very well be the case for Jordan.
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duration of waivers and provided for the revocation of waivers when the basis for granting the
waiver is no longer applicable.6 19 USC 2291(c)(2). Hence, in addition to directly limiting
application of the deadlines found under § 2291(a)(5)(A)(ii), Congress provided clear guidance
on the timing and efficacy of waivers.
D. Conclusion
When the relevant statutory scheme is interpreted as a whole, Congress’s decision to limit
the strict deadlines specified under § 2291(a)(5)(A)(ii) to enrollments under § 2291(a)(5)(A)(i)
and its refusal to create a similar deadline for the waivers permitted by § 2291(a)(5)(C) must be
understood to have been deliberate. For this reason, we conclude that Congress was not silent on
the issue; rather, Congress unambiguously provided that the deadlines stated in
§ 2291(a)(5)(A)(ii) only applied to the enrollment option provided by § 2291(a)(5)(A)(i). And
Congress clearly intended the waivers permitted by § 2291(a)(5)(C) to be subject only to the
timing restrictions generally applicable to the provision of TRA benefits. See 19 USC
2291(a)(1). Because Congress’s intent is clear, the Department’s determination that the
§ 2291(a)(5)(A)(ii) deadlines should apply to the waivers permitted under § 2291(a)(5)(C) and
§ 2291(c) is not entitled to any deference. Indeed, because the Department’s construction of the
statutory scheme contradicts Congress’s unambiguously stated intent to limit application of the
§ 2291(a)(5)(A)(ii) deadlines, we must reject that construction.7 Chevron, 467 US at 843 n 9.
With regard to both claimants, the Board properly determined that the claimants were entitled to
TRA benefits. Because the Board did not err in this regard, the trial courts properly affirmed the
Board’s decisions.
We are cognizant that at least one foreign jurisdiction has determined that the statutory
language at issue is sufficiently ambiguous to warrant deference to the Department’s
interpretation. See Wisconsin Dep’t of Workforce Dev v Labor & Industry Review Comm, 297
Wis 2d 546; 725 NW2d 304 (Wis App, 2006); see also Lowe v Unemployment Compensation Bd
of Review, 877 A2d 494, 498 (Pa Cmwlth, 2005). However, foreign authorities are not binding
6
Congress also provided that, when a waiver is revoked, a worker might still obtain TRA
benefits under the enrollment provision if the worker enrolls in an approved training program
within a period set by the Secretary of Labor after the termination of the waiver. See 19 USC
2291(a)(5)(A)(ii)(IV). It is telling that Congress did not choose to effect this provision through a
tolling mechanism—that is, Congress did not provide that the grant of a waiver tolls the period
provided under § 2291(a)(5)(A)(ii). Instead, it authorized the secretary to establish a new period
after the revocation of the waiver. The decision to handle revocations in this manner further
suggests that Congress understood that a waiver could be granted outside the period provided
under 19 USC 2291(a)(5)(A)(ii).
7
We also do not share the Agency’s concern that it must follow the Department’s interpretation
or risk breaching its agreement with the Department. Under the Department’s own regulations,
the Agency is tasked with following the law. See 20 CFR 617.59. And because we have
determined that Congress plainly provided that the deadlines stated in 19 USC 2291(a)(5)(A)(ii)
do not apply to waivers, that determination is the law and must be given effect. Chevron, 467
US at 843 n 9.
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on this Court, and we find these authorities unpersuasive. See Hiner v Mojica, 271 Mich App
604, 612; 722 NW2d 914 (2006) (noting that judicial decisions from foreign jurisdictions are not
binding on this Court). The statutory provisions at issue are not ambiguous, and we will enforce
them as written.8 See Macomb Co Prosecutor, 464 Mich at 158 (noting that courts will enforce
unambiguous statutes as written).
There were no errors warranting relief.9
Affirmed in both cases. Because the cases involved important questions of public policy,
none of the parties may tax costs under MCR 7.219.
/s/ Michael J. Kelly
/s/ Jane M. Beckering
/s/ William C. Whitbeck
8
Even if we were to conclude that the statutory language was ambiguous, we would nevertheless
decline to defer to the Department’s construction. The Department’s interpretation is not
codified as a regulation. Instead, the Department’s interpretation is found in a letter intended to
provide guidance to the various agencies charged with making TRA benefit determinations.
Hence, it is not entitled to Chevron deference. See United States v Mead Corp, 533 US 218,
231-235; 121 S Ct 2164; 150 L Ed 2d 292 (2001) (explaining that agency policy statements,
manuals, and enforcement guidelines are not entitled to Chevron deference). Further, although
the letter is persuasive authority, see Skidmore v Swift & Co, 323 US 134, 140; 65 S Ct 161; 89 L
Ed 124 (1944), because the letter is inconsistent with the statute’s language and underlying
purpose, we would decline to follow it.
9
Given our resolution of this issue, we decline to address the parties’ alternative arguments
concerning estoppel.
-11-
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