[Cite as Lang v. Dir., Ohio Dept. of Job & Family Servs., 134 Ohio St.3d 296, 2012-Ohio-
5366.]




  LANG ET AL., APPELLEES, v. DIR., OHIO DEPARTMENT OF JOB AND FAMILY
                               SERVICES, APPELLANT.
 [Cite as Lang v. Dir., Ohio Dept. of Job & Family Servs., 134 Ohio St.3d 296,
                                    2012-Ohio-5366.]
Unemployment compensation—Alternative Trade Adjustment Assistance for
       Older Workers—19 U.S.C. 2318(a)(3)(B)—Deference to agency’s
       interpretation of statute.
    (No. 2011-1740—Submitted June 5, 2012—Decided November 21, 2012.)
              APPEAL from the Court of Appeals for Seneca County,
 Nos. 13-10-33, 13-10-34, and 13-10-35, 196 Ohio App.3d 80, 2011-Ohio-4327.
                               __________________
       LANZINGER, J.
       {¶ 1} In this case, we must determine whether appellant, Ohio
Department of Jobs and Family Services (“ODJFS”), properly denied applications
for federal wage subsidies filed by appellees, three former employees of
American Standard who later were reemployed at a lower wage before they
reached the age of 50. Because ODJFS offered a reasonable interpretation of
ambiguous language in the federal statute that established the wage subsidies, we
conclude that ODJFS did not improperly deny the applications.
                                        I. Facts
       A. Statutory Background
       {¶ 2} In 2002, Congress created a program called Alternative Trade
Adjustment Assistance for Older Workers (“ATAA”), which provided wage
supplements for certain unemployed workers who became reemployed at lower
wage rates. 19 U.S.C. 2318. As enacted in 2002 and relevant to this case, the
statute provided:
                              SUPREME COURT OF OHIO




               A worker in the group that the Secretary has certified as
       eligible for the alternative trade adjustment assistance program
       may elect to receive benefits under the alternative trade adjustment
       assistance program if the worker—
               (i) is covered by a certification under subchapter A of this
       chapter;
               (ii) obtains reemployment not more than 26 weeks after the
       date of separation from the adversely affected employment;
               (iii) is at least 50 years of age;
               (iv) earns not more than $50,000 a year in wages from
       reemployment;
               (v) is employed on a full-time basis as defined by State law
       in the State in which the worker is employed; and
               (vi) does not return to the employment from which the
       worker was separated.


Trade Act of 2002, Pub.L. No. 107-210, section 124, 116 Stat. 933, 945, amended
by Pub.L. No. 108-429, section 2004, 118 Stat. 2434, 2590.
       {¶ 3} Ohio has entered into a contract with the United States Department
of Labor to facilitate the distribution of ATAA funds in the state. Pursuant to this
contract, Ohio has agreed to follow federal statutes, regulations, and program
directives in expending the ATAA funds. One directive is Training and Guidance
letter (“TEGL”) 2-03, issued by the United States Department of Labor
Employment and Training Administration, which provided interim operating
instructions for implementing ATAA. 69 Fed.Reg. 60904. In the portion setting
forth eligibility requirements, the letter provides:




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                To be eligible for ATAA, an individual must meet the
       following conditions at the time of reemployment:
                1. Be at least age 50 at time of reemployment. The
       individual’s age can be verified with a driver’s license or other
       appropriate documentation.


Id. at 60907.
       B. The Denial of ATAA Funds to the Applicants
       {¶ 4} In December 2007, appellees, James Lang, Mark Laibe, and Teddy
Sharp (“the applicants”), were dismissed from their jobs at American Standard.
They eventually found new employment and applied for ATAA. Each application
was denied by ODJFS because none of the applicants was at least 50 years old at
the time of reemployment. The applicants filed requests for redetermination,
which were also denied by ODJFS.
       {¶ 5} Lang appealed, and the matter was transferred to the Ohio
Unemployment Compensation Review Commission, where a hearing officer
reversed the determination and concluded that Lang’s application for ATAA
should be allowed because 19 U.S.C. 2318(a)(3)(B) does not require that an
applicant be at least 50 years old on the date of reemployment. ODJFS requested
review of the decision on Lang’s application, and the Ohio Unemployment
Review Commission reversed the hearing officer’s decision and disallowed
Lang’s claim because he was not 50 years old when he became reemployed.
       {¶ 6} Laibe and Sharp also appealed, but a hearing officer affirmed the
determinations that the two were ineligible for ATAA. The Ohio Unemployment
Review Commission then disallowed Laibe’s and Sharp’s requests for review of
the hearing officer’s decisions.
       {¶ 7} The three applicants each appealed the commission’s decisions
denying their ATAA eligibility to the Seneca County Court of Common Pleas,



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which consolidated the cases and reversed the commission’s decisions. After
recognizing that the statute is ambiguous because it did not address when an
applicant must be at least 50 years of age—whether at the time of reemployment
or at the time the application was filed—the trial court found that the
Unemployment Compensation Review Commission was not compelled to follow
TEGL 2-03. The trial court stated that the statute was intended to help workers
and that awarding ATAA benefits to the applicants adhered to the clear intent of
Congress in passing the act.
       {¶ 8} On appeal, ODJFS argued that the trial court had erred by ignoring
the United States Department of Labor’s interpretation that the statute required
those who apply for ATAA to be 50 years old at the time of their reemployment.
Lang v. Dir., Ohio Dept. of Job & Family Servs., 196 Ohio App.3d 80, 2011-
Ohio-4327, 962 N.E.2d 357, ¶ 16. The Third District Court of Appeals rejected
this argument and affirmed the judgment of the trial court. Id. at ¶ 36. A majority
of the court of appeals panel concluded that 19 U.S.C. 2318(a)(3)(B) is
unambiguous, reasoning that the language providing that a worker “may elect to
receive benefits” if the worker “is at least 50 years of age” indicates that an
individual must be at least 50 years old at the time the individual elects to receive
ATAA benefits. Id. at ¶ 25. The majority reasoned that the requirement set forth
in TEGL 2-03 that the applicant be 50 years old at the time of reemployment is
not only unnecessary to carry out the ATAA provisions, but is also manifestly
contrary to the language of the statute.      Id. at ¶ 28.    The dissenting judge
concluded that the overall language of the statute compels a conclusion that the
statute requires a worker to be 50 years old at the time of reemployment. Id. at
¶ 39-41.
       {¶ 9} We accepted jurisdiction to address ODJFS’s proposition of law:
“An applicant cannot receive an ATAA wage subsidy unless he has reached 50




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                               January Term, 2012




years of age at the time of reemployment.” See Lang v. Dir., Ohio Dept. of Job &
Family Servs., 131 Ohio St.3d 1410, 2012-Ohio-136, 959 N.E.2d 1056.
                                  II. Analysis
       {¶ 10} ODJFS argues that because of its contractual obligation to the
United States Department of Labor, it was obligated to follow TEGL 2-03.
ODJFS also argues that the letter reasonably interprets the ambiguity in the age
requirement in the federal statute. Because of this ambiguity, the Department of
Labor’s expertise in the area, and the reasonableness of the Department of
Labor’s interpretation, ODJFS concludes that we should defer to the Department
of Labor’s interpretation. The applicants counter that the requirement in TEGL 2-
03 that an applicant be 50 years old at the time of reemployment is unlawful and
unreasonable and that neither the contractual obligations of ODJFS nor the
principle of judicial deference to agency interpretations warrants reversal of the
appellate court’s decision.
       A. Standard of Review
       {¶ 11} R.C. 4141.282(H) sets forth the standard of review for a decision
made by the Unemployment Compensation Review Commission: “If the court
finds that the decision of the commission was unlawful, unreasonable, or against
the manifest weight of the evidence, it shall reverse, vacate, or modify the
decision, or remand the matter to the commission. Otherwise, the court shall
affirm the decision of the commission.” This limited standard of review applies
to all appellate courts. Irvine v. Unemp. Comp. Bd. of Rev., 19 Ohio St.3d 15, 18,
482 N.E.2d 587 (1985). “[A] reviewing court may not reverse the commission’s
decision simply because ‘reasonable minds might reach different conclusions.’ ”
Williams v. Ohio Dept. of Job & Family Servs., 129 Ohio St.3d 332, 2011-Ohio-
2897, 951 N.E.2d 1031, ¶ 20, quoting Irvine at 18.
       {¶ 12} The parties offer conflicting interpretations of 19 U.S.C.
2318(a)(3)(B), and thus this case involves a question of statutory interpretation.



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A question of statutory construction presents an issue of law that we determine de
novo on appeal. Ceccarelli v. Levin, 127 Ohio St.3d 231, 2010-Ohio-5681, 938
N.E.2d 342, ¶ 8, citing State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163,
871 N.E.2d 1167, ¶ 8. We accordingly review the statute to determine whether its
meaning is clear. “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.”      Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-843, 104 S.Ct. 2778, 81 L.Ed.2d 694
(1984). If the statute’s meaning is unclear, our next task is to determine whether
the agency’s interpretation is entitled to deference. “[I]f the statute is silent or
ambiguous with respect to the specific issue, the question for the court is whether
the agency’s answer is based on a permissible construction of the statute.” Id. at
843.
       B. The Requirement of 19 U.S.C. 2318(a)(3)(B) that Applicants Be “at
least 50 years of age” Is Ambiguous
       {¶ 13} The crux of the dispute between ODJFS and the applicants is
whether the language of 19 U.S.C. 2318(a)(3)(B), which requires that those who
apply for ATAA be at least 50 years of age, is ambiguous. ODJFS argues that the
language is ambiguous and that the interpretation presented in TEGL 2-03 is
reasonable. The applicants agree with the court of appeals that Congress clearly
stated that an applicant must be 50 years old at the time he or she elects to receive
ATAA benefits and that the statute is unambiguous.
       {¶ 14} “A statute is ambiguous when its language is subject to more than
one reasonable interpretation.” Clark v. Scarpelli, 91 Ohio St.3d 271, 274, 744
N.E.2d 719 (2001). We agree with ODJFS that 19 U.S.C. 2318(a)(3)(B) is
ambiguous, because it leaves open the question whether an applicant must be 50
years old at the time of reemployment or at the time application is made for
benefits. To see the statutory ambiguity, one need look no further than the fact




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that both ODJFS and the applicants offer reasonable and conflicting
interpretations of the statute. On one hand, it is reasonable to read the statute as
requiring applicants to be 50 years old at the time of reemployment. Applicants
must have already obtained employment to satisfy 19 U.S.C. 2318(a)(3)(B)(ii),
(iv), (v), and (vi), and thus it would be consistent to read subsection (a)(3)(B)(iii)
to set the date of reemployment as the date upon which an applicant must be 50
years old. On the other hand, the applicants’ interpretation of the statute is also
reasonable, in that subsection (a)(3)(B)(iii) could be read as saying that a worker
must be at least 50 years of age at the time the worker elects to receive the
benefits. Given that there are two reasonable readings of the statute, we hold that
19 U.S.C. 2318(a)(3)(B) is ambiguous.
        C. ODJFS’s Reasonable Interpretation of the Ambiguous Statute Is
Entitled to Deference
        {¶ 15} As noted above, our standard of review in this case is deferential,
and we do not agree with the applicants’ argument that the decision of the
commission was unlawful and unreasonable. The statute is ambiguous, and the
interpretation by ODJFS is reasonable and not contrary to law. Regardless of
whether ODJFS was contractually bound to follow TEGL 2-03, the agency chose
to adopt the United States Department of Labor’s reading of the statute as its own.
In adopting this reasonable reading of the statute, ODJFS exercised its expertise
and discretion, and we will not interfere with its reasonable and lawful decision.
        {¶ 16} To be clear, we do not hold today that ODJFS was bound to follow
TEGL 2-03. We merely conclude that ODJFS’s interpretation is reasonable and
entitled to deference given the ambiguity found in 19 U.S.C. 2318(a)(3)(b). R.C.
4141.282(H) sets forth a highly deferential standard for reviewing decisions of the
Unemployment Compensation Review Commission, and this court will not reject
a decision that is lawful and reasonable.




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                              SUPREME COURT OF OHIO




                                     III. Conclusion
          {¶ 17} The Unemployment Compensation Review Commission’s decision
in this case that the applicants are not entitled to ATAA benefits is reasonable and
entitled to deference.     We reverse the judgment of the court of appeals and
remand the case to the trial court for further proceedings consistent with this
opinion.
                                                                   Judgment reversed
                                                                 and cause remanded.
          O’CONNOR, C.J., and LUNDBERG STRATTON and MCGEE BROWN, JJ.,
concur.
          PFEIFER and O’DONNELL, JJ., dissent.
          CUPP, J., dissents and would dismiss the appeal as having been
improvidently accepted.
                                __________________
          PFEIFER, J., dissenting.
          {¶ 18} The majority opinion states that “19 U.S.C. 2318(a)(3)(B) is
ambiguous, because it leaves open the question whether an applicant must be 50
years old at the time of reemployment or at the time application is made for
benefits.” Majority opinion at ¶ 14. In doing so, the majority opinion confuses a
statute’s lack of comprehensiveness with ambiguity. There is no question that the
statute is not comprehensive. That should surprise nobody; it is exceedingly
difficult to draft a statute that covers every single potentiality. But failing to do so
is not the standard for ambiguity.
          {¶ 19} With respect to the issue before us, the statute reads: “A worker in
the group that the Secretary has certified as eligible for the alternative trade
adjustment assistance program may elect to receive benefits * * * if the worker
* * * is at least 50 years of age.” Trade Act of 2002, Pub.L. No. 107-210, section
124, 116 Stat. 933, 945, amended by Pub.L. No. 108-429, section 2004, 118 Stat.




                                            8
                                 January Term, 2012




2434, 2590. No term or word in that sentence is ambiguous; neither is the
sentence as a whole. The sentence is understandable and reasonable and fits
within the scheme of the statute. It is not susceptible of more than one meaning.
Yet the majority opinion analyzes the sentence as if it is ambiguous.              It
compounds that mistake by granting undue deference to an agency interpretation.
Such deference is due only when a statute is ambiguous.
        {¶ 20} The majority opinion violates some of our most common precepts.
In Bernardini v. Conneaut Area City School Dist. Bd. of Edn., 58 Ohio St. 2d 1, 4,
387 N.E.2d 1222 (1979), we stated that where language of a statute is clear and
unambiguous, it is the duty of the court to enforce the statute as written. In Crowl
v. DeLuca, 29 Ohio St.2d 53, 58-59, 278 N.E.2d 352 (1972), we stated that absent
ambiguity or doubt, a statute “is not subject to judicial modification in the guise
of interpretation.” In Columbus-Suburban Coach Lines, Inc. v. Pub. Util. Comm.,
20 Ohio St.2d 125, 127, 254 N.E.2d 8 (1969), we stated that that this court has a
duty “to give effect to the words used [in a statute], not to delete words used or to
insert words not used.” Today, the majority opinion does not “enforce the statute
as written,” modifies the statute under the guise of interpretation, and adds words
to the statute. That an agency had already done so does not excuse this court from
its obligation to enforce the statute as written.
        {¶ 21} Congress could have stated that applicants are not eligible unless
they are 50 years old at the time of reemployment. It did not. Instead, Congress
enacted a statute that states that applicants may elect to receive benefits if, among
other things, they are at least 50 years old. The plain meaning of the statute is not
ambiguous. Accordingly, I would analyze it without according deference to the
letter issued by the United States Department of Labor Employment and Training
Administration or the decision made by the Ohio Unemployment Review
Commission.




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       {¶ 22} Because the applicants were 50 years old when they elected to
receive benefits, I conclude that the applicants fit within the standard set forth in
19 U.S.C. 2318(a)(3)(B)(iii). I would affirm the decision of the court of appeals
or declare that the case was improvidently accepted. I dissent.
   O’DONNELL, J., concurs in the foregoing opinion.
                              __________________
       Jason E. Dawicke; and Kenneth J. Kowalski, Employment Law Clinic,
Cleveland-Marshall College of Law, for appellees.
       Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor
General, Michael J. Hendershot, Chief Deputy Solicitor, Peter K. Glenn-
Applegate, Deputy Solicitor, and Eric A. Baum, Assistant Attorney General, for
appellant.
                            ______________________




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