Dwd v. Lirc, 2006AP395.

• Decision Date: 26 October 2006
• Docket Number: No. 2006AP395.,2006AP395.
• Citation: Dwd v. Lirc, 725 N.W.2d 304, 2006 WI App 241, 297 Wis.2d 546 (Wis. App. 2006)
• Parties: WISCONSIN DEPARTMENT OF WORKFORCE DEVELOPMENT, Plaintiff-Respondent, v. LABOR AND INDUSTRY REVIEW COMMISSION, Defendant-Appellant, Mary A. Robinson, Joe N. Hartlich, Kathleen A. Siebold, Beatrice A. Jaeger, Richard H. Todl, Sherry J. Wilson, Brian M. Dean, Christine L. Tracy, Elizabeth J. Hurst, Michael J. Jersey, Dale J. Husnik, Mary E. McCormick, Carmella R. Suttle, Maria G. Espadas, Lisa W. Yuen, Bong S. Smith, Ofelia Garcia, Maria L. Trevino, Patricia A. Chapple and Bruce W. Court, Defendants.
• Court: Wisconsin Court of Appeals

725 N.W.2d 304

2006 WI App 241

WISCONSIN DEPARTMENT OF WORKFORCE DEVELOPMENT, Plaintiff-Respondent, v. LABOR AND INDUSTRY REVIEW COMMISSION, Defendant-Appellant Mary A. Robinson, Joe N. Hartlich, Kathleen A. Siebold, Beatrice A. Jaeger, Richard H. Todl, Sherry J. Wilson, Brian M. Dean, Christine L. Tracy, Elizabeth J. Hurst, Michael J. Jersey, Dale J. Husnik, Mary E. McCormick, Carmella R. Suttle, Maria G. Espadas, Lisa W. Yuen, Bong S. Smith, Ofelia Garcia, Maria L. Trevino, Patricia A. Chapple and Bruce W. Court, Defendants.

No. 2006AP395.

Court of Appeals of Wisconsin.

Submitted on Briefs August 8, 2006.

Opinion Filed October 26, 2006.

COPYRIGHT MATERIAL OMITTED

On behalf of the defendant-appellant, the cause was submitted on the briefs of David B. Nance, Labor and Industry Review Commission, Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Daniel J. LaRocque and Jessica A. Nelson, Wisconsin Department of Workforce Development, Madison.

Before LUNDSTEN, P.J., and DYKMAN and VERGERONT, JJ.

¶ 1 VERGERONT, J

This appeal concerns the eligibility of laid-off workers for trade readjustment allowances under the Trade Adjustment Act of 1974, as amended, 19 U.S.C. §§ 2271-2322 (2000 & Supp.2004) (the Act).¹ The Department of Workforce Development (DWD) determined that certain workers seeking these allowances were ineligible because they had not enrolled in an approved training program or received a training waiver within the time period specified in the Act. In arriving at these decisions, DWD followed a guidance letter issued by the United States Department of Labor (DOL). The Wisconsin Labor and Industry Review Commission (LIRC) determined that it was not obligated to follow the DOL guidance letter and employed a different construction of the Act under which there was no deadline for receiving a waiver. As a result, LIRC set aside DWD's decisions and remanded to DWD for further determinations regarding waivers. On DWD's appeal to the circuit court, the court concluded that LIRC erred in disregarding the DOL guidance letter, and LIRC appeals.

¶ 2 We conclude that the statutory language at issue is ambiguous because both LIRC's construction of the Act and DOL's construction as expressed in the guidance letter are reasonable. We do not, however, resolve that ambiguity because we conclude that LIRC, like DWD, is obligated by the terms of the agreement between the State of Wisconsin and DOL to apply DOL's reasonable construction of the Act as expressed in the guidance letter. We therefore affirm.

BACKGROUND

¶ 3 The Act provides benefits to eligible workers who have lost their jobs because of competition from foreign companies. 19 U.S.C. § 2271 et seq. Benefits include trade readjustment allowances, costs of approved training, counseling and placement services, and job search and relocation allowances. 19 U.S.C. §§ 2291-98. These benefits are sometimes referred to as the "trade adjustment assistance program." A group of workers becomes eligible to apply for these benefits upon certification by the Secretary of DOL that they or their employment has been adversely affected by foreign trade competition as defined by the Act. 19 U.S.C. §§ 2271-3, 2319(1) and (2).

¶ 4 Under the Act, the Secretary of DOL is authorized to enter into agreements with any state or state agency under which "the cooperating State agency . . . as agent of the United States, will receive applications for, and will provide, payments on the basis provided in this chapter," make available certain services, and perform certain other responsibilities under the Act. 19 U.S.C. § 2311(a). The cooperating states receive the necessary funds from the Secretary of DOL. 19 U.S.C. § 2313.

¶ 5 Pursuant to an agreement titled "Agreement between the State of Wisconsin and the Secretary of Labor . . .," DWD is identified as the state agency to "act as the agent of the United States" in carrying out the specified responsibilities under the Act. This agreement provides that "[t]he functions and duties undertaken under this Agreement will be performed in accordance with the Act and the regulations and operating instructions issued thereunder by the [DOL]." The agreement also states that "the State agrees to follow the eligibility criteria and procedures for the [trade adjustment assistance] program under [the Act]" and "operating instructions" for implementing the Act contained in specified "Training and Employment Guidance Letters."

¶ 6 With respect to eligibility for the trade readjustment allowance, workers must meet certain conditions for eligibility. 19 U.S.C. § 2291(a). The condition relevant to this appeal relates to training programs and requires that the worker:

(A)(i) is enrolled in a training program approved by the Secretary under section 236(a) [19 U.S.C. § 2296(a)], and

(ii) the enrollment required under clause (i) occurs 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 paragraphs (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

(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 subsection (c).

(B) has, after the date on which the worker became totally separated, or partially separated, from the adversely affected employment, completed a training program approved by the Secretary . . ., or

(C) has received a written statement under subsection (c)(1) after the date described in subparagraph (B).

Section 2291(a)(5).

¶ 7 19 U.S.C. § 2291(c)(1) authorizes the Secretary to waive the requirement of enrolling in a training program described in § 2291(a)(5)A "if the Secretary determines that it is not feasible or appropriate for the worker, because of 1 or more" of the listed reasons.² The Secretary may authorize a cooperating state, in the agreements under 19 U.S.C. § 2311, to issue these waivers. Section 2291(c)(3)A. In Wisconsin, the agreement with DOL authorizes "the State" to issue waivers under subsec. (c).

¶ 8 The time limits in 19 U.S.C. § 2291(a)(5)A(I)-(IV) were added by amendment in 2002. See Act of Aug. 6, 2002, Pub.L. No. 107-210, § 114, Stat. 939. In this opinion, we will call the time limits in I and II of § 2291(a)(5)A the "16/8-week deadline." One of the guidance letters specified in the agreement with DOL refers to the 16/8-week deadline. (It is identified as the "Training and Employees Guidance Letter 11-02 Change 1"; we will call it "the 11-02 guidance letter.") This guidance letter states that the 2002 amendment "imposed 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 [the trade readjustment allowance]" and that "[state agencies] must . . . assist . . . workers in enrolling in an approved training program prior to the [16/8-week] deadline, or issue the workers waivers prior to the [16/8-week] deadline, if appropriate."

¶ 9 The twenty claimants involved in this case were laid off because of lack of work by employers whom the Secretary certified as adversely affected by foreign trade. The claimants contacted DWD seeking benefits under the Act, but they all did so after the 16/8-week deadline. DWD issued initial determinations concluding that the claimants were ineligible for the trade readjustment allowance because they had neither enrolled in a training program nor obtained a waiver of the training requirement within the 16/8-week deadline.

¶ 10 The claimants appealed the initial determinations and a hearing was held before an administrative law judge (ALJ). The ALJ upheld DWD's initial determinations in all cases but one; as to Christine Tracy, the ALJ determined that DWD was estopped from enforcing the 16/8-week deadline because it had failed to inform Tracy about it.

¶ 11 All twenty claimants appealed DWD's decisions to LIRC. LIRC concluded that DWD had erroneously interpreted 19 U.S.C. § 2291(a)(5) and that the 16/8-week deadline did not apply to waivers under subsec. (c). In reaching this conclusion, LIRC considered the 11-02 guidance letter but decided not to give it any weight because it was not the result of formal rulemaking and did not explain how DOL arrived at this interpretation of the Act.

¶ 12 Based on its interpretation of 19 U.S.C. § 2291(a)(5) and (c), LIRC reversed and remanded with directions for DWD to determine whether training waivers were appropriate under the criteria in § 2291(c)(1).³ In Tracy's case, LIRC addressed the issue whether equitable estoppel applied. LIRC concluded that, even though DWD had not complied with its obligations to provide information under the Act with respect to Tracy,⁴ a federal regulation and other considerations precluded the application of equitable estoppel.

¶ 13 In each case, DWD moved for reconsideration arguing that, because of the agreement with DOL, the State of Wisconsin, including LIRC, was obligated to comply with the 11-02 guidance letter. If the State did not do so, DWD asserted, DOL was authorized to reduce the federal unemployment tax credit granted to employers and the State might be required to repay to the federal government sums that DOL determined were improperly paid to claimants. Attached to DWD's motion was a letter from a DOL regional administrator to the secretary of DWD stating that LIRC's construction of the Act was inconsistent with the 11-02 guidance letter and advising DWD to take all reasonable steps to obtain a reconsideration or appeal of LIRC's decision. The letter warned that failure to take these actions would...