                           STATE OF MICHIGAN

                            COURT OF APPEALS



DEPARTMENT OF LICENSING &                                              FOR PUBLICATION
REGULATORY AFFAIRS, UNEMPLOYMENT                                       June 11, 2015
INSURANCE AGENCY/TRA SPECIAL                                           9:05 a.m.
PROGRAMS UNIT,

               Petitioner-Appellant,

v                                                                      No. 318799
                                                                       Macomb Circuit Court
MOHAMMED KHAN,                                                         LC No. 2013-001578-AE

               Respondent-Appellee.


Before: SAAD, P.J., and M. J. KELLY and SHAPIRO, JJ.

PER CURIAM.

        Following a remand from the Supreme Court to review this case as on leave granted,1
petitioner appeals an order of the circuit court affirming the Michigan Compensation Appellate
Commission’s (MCAC’s) determination that respondent is entitled to federal trade readjustment
allowance (TRA) unemployment benefits under the Trade Act of 1974, 19 USC 2101 et seq. We
affirm.

        This case concerns respondent’s attempt to obtain TRA benefits even though he did not
participate in training classes, which are a prerequisite to eligibility, or to timely file a waiver of
training. These benefits are offered under a federal program to those whose “firm has been
adversely affected by imports” and whose employment has been affected as a result. Dep’t of
Labor & Economic Growth, Unemployment Ins Agency v Dykstra, 283 Mich App 212, 215; 771
NW2d 423 (2009). Essentially, a group of workers first seeks approval to become certified for
the program and then the affected workers seek individual eligibility. Although the program is
entirely federally funded, petitioner—through Michigan Works! at the time of respondent’s
filing—administers the eligibility portion of the program.




1
 Dep’t of Licensing & Regulatory Affairs, Unemployment Ins Agency, TRA Special Programs
Unit v Khan, 497 Mich 945; 857 NW2d 41 (2014).



                                                 -1-
         On October 22, 2009, workers at respondent’s employer, Technicolor, were certified for
eligibility for TRA benefits Respondent was separated from his employment at Technicolor on
January 4, 2010 and, on March 24, 2010, he signed a document acknowledging that he had 26
weeks from separation, i.e., until July 5, 2010, to enroll in classroom training or to contact the
Michigan Works! office to request a waiver.2 However, respondent did not enter training. He
acknowledged below that he simply forgot to do so, and that he only remembered the deadline
after seeing some of his colleagues going to the training. Petitioner denied respondent’s request
for TRA benefits. Respondent sought a redetermination of petitioner’s decision, which was
denied on the basis that respondent’s September 7, 2011 request to waive training was untimely.
Respondent appealed that decision to the Michigan Administrative Hearings System. Following
a hearing on February 1, 2012, the administrative law judge issued a written decision in which he
determined that respondent was entitled to benefits because the 26-week deadline contained in
the 2009 version of 19 USC 2291(a)(5)(A)(ii) applied only to enrollments in training and not to
waivers of training, which were instead covered under 19 USC 2291(a)(1), a statute that did not
contain this time limit. In reaching this decision, the administrative law judge relied on this
Court’s decision in Dykstra, which, discussing the 2002 version of the statue, found that even
though the United States Department of Labor (USDL) had a contrary interpretation concerning
the then 16-week deadline, that interpretation was not entitled to any deference. Dykstra, 283
Mich App at 229. In this case, petitioner appealed the administrative law judge’s decision to the
MCAC, which affirmed on the basis that Dykstra constituted binding precedent. The MCAC
noted that the result was consistent with a 2011 MCAC decision where the commission found
that another individual was entitled to TRA benefits under Dykstra. The trial court affirmed on
similar grounds.

        Petitioner argues that the MCAC and the circuit court erred in finding that this case is
governed by Dykstra’s holding. Noting that Congress amended the Trade Act in 2009 to change
the relevant deadlines under 19 USC 2291(a)(5)(A)(ii) from 8 and 16 to 26 and 26 weeks,
petitioner essentially argues that Congress’s continued silence as to whether the deadlines apply
to those seeking a waiver acts as an adoption of the USDL’s interpretation that the deadlines
apply. Petitioner argues that Dykstra no longer is good law and has no precedential value.

       A circuit court may reverse a decision of the MCAC only if it is “contrary to law or is not
supported by competent, material, and substantial evidence on the whole record.” MCL
421.38(1).

       [W]hen [this Court] review[s] a lower court’s review of agency action this Court
       must 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. This latter standard is indistinguishable from the
       clearly erroneous standard of review that has been widely adopted in Michigan
       jurisprudence. As defined in numerous other contexts, a finding is clearly



2
  The act also provides for an alternate deadline under 19 USC 2291(a)(5)(A)(ii)(II), which is not
at issue in this appeal.



                                               -2-
       erroneous when, on review of the whole record, this Court is left with the definite
       and firm conviction that a mistake has been made. [Boyd v Civil Serv Comm, 220
       Mich App 226, 234-235; 559 NW2d 342 (1996).]

       As a part of its role in administering the TRA program:

       [E]ach of these “cooperating Stat[e] agencies,” [19 USC 2311(a)], becomes an
       “agent of the United States,” [19 USC 2313(a)], charged with processing
       applications and using federal funds to pay TRA benefits to individuals eligible
       under the Act. Review of eligibility decisions by these agencies is to be “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)]. In making
       these eligibility determinations, however, state authorities are bound to apply the
       relevant regulations promulgated by the Secretary of Labor and the substantive
       provisions of the Act. 29 CFR § 91.51(c) (1985). [Int’l Union, United Auto,
       Aerospace & Agricultural Implement Workers of America v Brock, 477 US 274,
       277-278; 106 S Ct 2523; 91 L Ed 2d 228 (1986); see also Dykstra, 283 Mich App
       at 215.]

In this case, as discussed in detail in Dykstra, the general question is whether the deadlines in 19
USC 2291(a)(5)(A)(ii) apply to individuals who seek waivers for training, as well as to those
enrolled in an approved training program and what, if any, deference is to be given to the
interpretation of the Trade Act by the USDL as to this issue.

        Addressing the 2002 version of the Trade Act, the Dykstra Court discussed the then-
current deadlines contained in 19 USC 2291(a)(5)(A)(ii):

               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




                                                 -3-
               (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)]. [Dykstra, 283 Mich App at 216.]

Citing a 2004 guidance letter from the USDL, the Dykstra Court observed that the USDL had
interpreted these “8/16 deadlines” to apply to those also seeking a waiver. Id. at 217-218.

       However, after discussing general principles of administrative agency deference, the
proper interpretation of statutory language, the language of the Trade Act, as well as the stated
purposes of the act, the Dykstra Court held both that the deadlines were not applicable to waivers
and, more specifically, that the USDL’s interpretation was entitled to no deference:

               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 USA, Inc v Natural Resources Defense Council, Inc, 467
       US 837, 843 n 9; 104 S Ct 2778; 81 L Ed 2d 694 (1984)]. 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.



       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.

       [Dykstra, 283 Mich App at 229-230 (emphasis added).]

        Petitioner acknowledges that, as to the interpretation of the 2002 law, Dykstra is binding
on this Court. See MCR 7.215(J)(1). However, petitioner argues that Dykstra is not binding in
this case because it involved the 2002 version of the Trade Act rather than the 2009 version of


                                                -4-
the act at issue in this appeal. According to petitioner, the 2009 amendment extended the 8/16
week deadline to 26/26 weeks because of criticism raised by the Government Accountability
Office, which in turn referenced the earlier deadline as applying to the issuance of training
waivers.3

        Petitioner concedes that, similar to the previous version of the act, the 2009 amendment
did not set forth a deadline by which a claimant must act to waive the training requirement.
However, petitioner asserts that it need not have done so given the USDL’s continued
interpretation that the training deadline also applies to waivers. As petitioner sees it, Congress
effectively adopted the USDL’s waiver deadline interpretation when it amended the Trade Act in
2009 without explicitly setting forth a deadline for waivers. In support of its argument,
petitioner cites to Lorillard v Pons, 434 US 575, 580; 98 S Ct 866; 55 L Ed 2d 40 (1978), in
which the United States Supreme Court voiced the rule of construction that “Congress is
presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change.”

       In other words, petitioner argues that this Court should use the doctrine of “legislative
acquiescence” to find that the USDL’s interpretation of the statute is correct.

         [L]egislative acquiescence has been repeatedly repudiated by this Court because it
         is as an exceptionally poor indicator of legislative intent. . . . [T]he theory
         requires a court to intuit legislative intent not by anything that the Legislature
         actually enacts, but by the absence of action. Yet a legislature legislates by
         legislating, not by doing nothing, not by keeping silent. Thus, the doctrine of
         legislative acquiescence is a highly disfavored doctrine of statutory construction;
         sound principles of statutory construction require that Michigan courts determine
         the Legislature’s intent from its words, not from its silence. [McCahan v
         Brennan, 492 Mich 730, 749-750; 822 NW2d 747 (2012) (quotation marks and
         citations omitted; emphasis in original).]

        Moreover, under the legislative acquiescence doctrine, Congress would have been on
notice of the Dykstra holding as well as the USDL’s interpretation, a fact which undercuts
petitioner’s claim that Congress intended to have the USDL’s interpretation apply in Michigan.
Again, Dykstra specifically held that Congress had deliberately acted to remove the seeking of a
waiver from the time limits found in 19 USC 2291(a)(5)(A)(ii) and held, contrary to petitioner’s
repeated assertion, that Congress was not silent on the issue. Dykstra, 283 Mich App 229.
Congress had no need to act again, having already acted to provide that waivers could be sought
at any time. Further, petitioner’s recitation of the USDL’s continued opposite interpretation of
the act is unpersuasive because Dykstra specifically concluded that the USDL’s interpretation of
the provisions of the Trade Act was not entitled to any deference.




3
    The 2011 amendments expired and the initial 8/16 week deadline is now again in effect.



                                                 -5-
        Finally, petitioner’s argument that it is required to follow the USDL’s interpretation or
risk breaching its agreement was rejected by Dykstra, 283 Mich App at 230 n 7, and petitioner
does not refer us to any negative action taken by the USDL in response to that decision.

       Affirmed.



                                                           /s/ Henry William Saad
                                                           /s/ Michael J. Kelly
                                                           /s/ Douglas B. Shapiro




                                               -6-
