813 F.2d 1494 (9th Cir. 1987), 84-7762, Turner v. Brock

Docket Nº:84-7762, 85-7066.
Citation:813 F.2d 1494
Party Name:Orrin L. TURNER, Petitioner, v. William E. BROCK, III, [*] Secretary of Labor, Respondent. Brooks E. MONK; Robert G. Turner; Vernon T. Applewhite; Kenneth L. Craig; Caerwin Williams; William R. Bott; Allen B. Masterson; Charles J. Pickering; Jose R. Romero; Evert M. Ross; Donald E. Kern; Edwin Speier; and Maynard J. Ingham, Petitioners, v. William
Case Date:April 03, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1494

813 F.2d 1494 (9th Cir. 1987)

Orrin L. TURNER, Petitioner,

v.

William E. BROCK, III, [*] Secretary of Labor, Respondent.

Brooks E. MONK; Robert G. Turner; Vernon T. Applewhite;

Kenneth L. Craig; Caerwin Williams; William R. Bott;

Allen B. Masterson; Charles J. Pickering; Jose R. Romero;

Evert M. Ross; Donald E. Kern; Edwin Speier; and Maynard

J. Ingham, Petitioners,

v.

William E. BROCK, III, [*] Secretary of

Labor, Respondent.

Nos. 84-7762, 85-7066.

United States Court of Appeals, Ninth Circuit

April 3, 1987

Argued and Submitted Feb. 9, 1987.

Page 1495

John W. Cumming, Eureka, Cal., for petitioners.

Donald D. Carter, Jr., Washington, D.C., for respondent.

On Petition for Review of a Final Determination of the Secretary of Labor.

Before ANDERSON, ALARCON, and HALL, Circuit Judges.

ALARCON, Circuit Judge:

Brooks E. Monk, Robert G. Turner, Vernon T. Applewhite, Kenneth L. Craig, Caerwin Williams, William R. Bott, Allen B. Masterson, Charles J. Pickering, Jose R. Romero, Evert M. Ross, Donald E. Kern, Edwin Speier, and Maynard J. Ingham (claimants) have filed a petition for review of the decision of the Secretary of Labor (Secretary) upholding the redetermination by the California Employment Development Department (EDD) of the entitlement of the claimants to benefits under Title II of the Redwood National Park Expansion Act of 1978 (Redwood Act), Pub.L. 95-250, 92 Stat. 163, 172-182. 1 Claimants Monk and Robert G. Turner also seek review of the Secretary's determination that they are not employees under Section 201(3) of the Redwood Act.

Orrin L. Turner 2 has petitioned for a review of the Secretary's decision upholding a redetermination by the EDD which found him ineligible for benefits under Title II of the Redwood Act. Orrin L. Turner additionally appeals from the Secretary's finding that he is not an employee within the meaning of Section 201(3) of the Redwood Act.

We must decide whether the EDD ordered redetermination of each claimant's entitlement to prospective benefits, after the twenty day time period for reconsideration had expired, to correct errors of law or solely to comply with a change in the Secretary's discretionary policy concerning the award of benefits to certain persons engaged in managerial functions. We conclude that redetermination was ordered in each case to correct errors of law and affirm.

I.

The Redwood Act was enacted to increase the acreage of the Redwood National

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Park. To ensure that employees of the forest products industry would not be forced to suffer personal hardships as a result of the expansion of the park, the Redwood Act provides for the award of benefits to maintain the income and benefits of the employees of affected employers. Lanning v. Marshall, 650 F.2d 1055, 1056 (9th Cir.1981) (citing H.R.Rep. No. 95-581, 95th Cong., 2d. Sess. 28, 1978, U.S. Code Cong. & Admin. News 463 (1977); see Sec. 204(a) ("The Secretary shall provide, to the maximum extent feasible, ... rights and benefits which affected employees would have had in an employment with affected employers").

Title II of the Redwood Act sets forth the eligibility requirements and the administrative procedures that must be followed to obtain benefits under the Redwood Employee Protection Program (REPP). The Redwood Act limits the award of benefits under REPP to employees who work for an "affected employer." Sections 201(3) and 201(6).

Section 201(3) defines an "employee" as "a person employed by an affected employer and, with such exceptions as the Secretary may determine, in an occupation not described by section 13(a)(1) of the Fair Labor Standards Act [FLSA] (29 U.S.C. Sec. 213(a)(1))." Section 13(a)(1) of the FLSA pertains to "any employee employed in a bona fide executive, administrative, or professional capacity...." 29 U.S.C. Sec. 213(a)(1) (1982).

"Affected employers" are business entities engaged in the harvest of timber, or in related sawmill, plywood, and other wood processing operations. Section 201(6).

The EDD is authorized to administer applications for REPP benefits. 29 C.F.R. Sec. 92.1(b) (1980). Parties dissatisfied with a determination or redetermination by the EDD may appeal to an administrative law judge of the California Unemployment Insurance Appeals Board. 29 C.F.R. Sec. 92.50(f). Review of the ALJ's decision may be obtained from the Assistant Secretary of Labor. 29 C.F.R. Sec. 92.50(l ).

II.

Each claimant was employed by an affected employer. They were laid off between May 31, 1977 and September 30, 1980. Each applied for weekly layoff benefits and severance payments under Title II of the Redwood Act. Each claimant alleged that he was not barred from eligibility under section 13(a)(1) of the FLSA. The EDD initially determined that each claimant was eligible 3 for benefits under the Redwood Act. The EDD determined that benefits should be awarded after consulting the 1978 United States Department of Labor REPP Handbook (REPP Handbook) which was issued to California to provide guidelines for the administration of the REPP. Chapter II, section 4(a)(2) of the REPP Handbook states that to be eligible for benefits under the Redwood Act, a person must

not be in an...

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