       Third District Court of Appeal
                               State of Florida

                          Opinion filed January 25, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-1190
                          Lower Tribunal No. 13-2334
                             ________________

                             Diana R. Pedraza,
                                    Appellant,

                                        vs.

     Reemployment Assistance Appeals Commission, etc., et al.,
                                    Appellees.


     An Appeal from the Reemployment Assistance Appeals Commission.

     Diana R. Pedraza, in proper person.

    Louis A. Gutierrez (Tallahassee), Senior             Attorney,    for    appellee
Reemployment Assistance Appeals Commission.


Before LAGOA and FERNANDEZ, JJ., and SHEPHERD, Senior Judge.

     FERNANDEZ, J.

     This is an administrative appeal of an order from the Reemployment

Assistance Appeals Commission (“Commission”) that affirmed a decision of a

reemployment assistance appeals referee who held that Diana R. Pedraza was
ineligible to receive reemployment assistance benefits because she did not qualify

for Trade Readjustment Assistance (“TRA”) program under the Trade Act of 1974.

We reverse.

      The TRA program provides monetary assistance to workers who are

adversely affected by foreign trade competition. To determine whether a worker is

eligible under the TRA program, the worker’s annual wages at his or her current

employment must be less than the annual wages from the former trade-affected

employment and is calculated based upon the federal guidelines outlined in the

Training and Employment Guidance Letter (TEGL) No. 22-08.

      The federal guidelines state that the annual wages at separation from the

trade affected employment are computed by multiplying the worker’s hourly rate

received during the last full week of his or her employment by the number of hours

the individual worked during the last full week of employment and multiplying that

number by 52. Annualized wages at reemployment are defined similarly to

annualized wages at separation, except that the hourly rate and hours worked must

reflect those of the first full week of reemployment. Based upon this calculation

method, the Commission found that Pedraza was not eligible to receive benefits

under the TRA program because her annual wages at her current employment were

higher than her annual wages from the previous trade-affected employment.

      Pedraza worked for Boston Scientific Corporation (“Boston Scientific”) for



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seven years until her employment ended on September of 2011, as a result of

foreign trade competition. Pedraza’s pay rate at Boston Scientific was $11.74 per

hour. Pedraza was subsequently employed by Aveva in December of 2012 and her

pay rate was $9.50 per hour.

      Boston Scientific compensated Pedraza on a bi-weekly schedule. Pedraza’s

last pay period for Boston Scientific was September 25, 2011. The last pay stub

showed that Pedraza worked an average of nineteen and one-quarter hours per

week during the last two weeks. The second to last pay period, which ended on

September 11, 2011, showed that Pedraza worked seventy-two hours for two

weeks. Pedraza claimed that she normally worked forty hours per week, which is

evident in the first week of the September 11, 2011 pay period. But because the

last week of the September 11, 2011 pay period included the Labor Day holiday,

she worked only 32 hours that week.

      The Commission calculated Pedraza’s yearly income from Boston Scientific

by going back to the second week of the September 11, 2011 pay period. During

that week, Pedraza worked thirty-two hours instead of her normal forty hours due

to the Labor Day holiday. The Commission multiplied Pedraza’s wage of $11.74

per hour by thirty-two hours, equaling $375.68 per week. The Commission then

multiplied $375.68 by fifty-two, which resulted in a net income of $19,535.36 per

year from Boston Scientific.



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      The Commission next calculated Pedraza’s yearly income from Aveva by

looking at her first full week of employment. Pedraza worked forty hours during

that week. The Commission multiplied Pedraza’s wage by forty, equaling $380

per week. The Commission then multiplied $380 by fifty-two, which resulted in a

net income of $19,760 per year from Aveva. Based on these calculations, the

Commission found that Pedraza was not entitled to benefits under the TRA

program because her income at Aveva was higher than her income from Boston

Scientific.

       When calculating Pedraza’s income at Boston Scientific, the Commission

should have looked at the first week of the September 11, 2011 pay period. Had

the Commission done so, it would have accurately calculated her annual net

income based on a forty hour work week, which was her normal work schedule at

Boston Scientific. Pedraza’s forty hour weekly income of $469.60 would have

been multiplied by fifty-two, resulting in an average yearly income of $24,419.20

at Boston Scientific. Based on these calculations, it is apparent that Pedraza was

entitled to benefits under the TRA program because she was now earning less at

Aveva than when she worked at Boston Scientific, as her yearly income was

reduced by $4,659.20.

      The Commission denied Pedreza the financial benefits because it incorrectly

based its calculations on Pedraza’s last full week at Boston Scientific on a week



                                        4
when there was a national holiday. The Commission mistakenly interpreted the

phrase “last full week of employment” as set out in the federal guidelines to mean

the last week Pedraza worked full time. The Commission relied on Florida law to

define full time employment as 32 hours or more per week.

      We acknowledge that an agency's interpretation of a statute, with which it is

legislatively charged with administering, shall be accorded great weight and should

not be overturned unless clearly erroneous, arbitrary, or unreasonable. Guido v.

Vincam Human Resources, Inc., 729 So. 2d 968, 969 (Fla. 3d DCA 1999). As

such, we find that the Commission’s interpretation of what is the “last full week of

employment” for purposes of determining a worker’s eligibility to receive TRA

benefits was clearly erroneous. See Weiser v. Unemployment Appeals Comm’n,

406 So. 2d 1200, 1201 (Fla. 4th DCA 1981)(ruling that the Commission’s

construction of the phrase “26 weeks of employment” was flawed, and the worker

was entitled to financial assistance under the TRA program).

      The phrase “last full week of employment” should not be read as the last

week an employee works full time as defined by Florida law. The phrase “last full

week of employment” should be decided on a case-by-case analysis to determine

how much the applicant normally worked while employed with the subject

company. Thus, her last full week of employment at Boston Scientific was not the

last week she worked full time, but rather it is the last week Pedraza worked her



                                         5
normal schedule. Pedraza worked for Boston Scientific for seven years at an

average of forty hours a week. It was clearly erroneous for the Commission to

calculate Pedraza’s last full week of employment in a week when there was a

Labor Day holiday in which she was not required to work. We therefore reverse

the decision of the Reemployment Assistance Appeals Commission because it was

clearly erroneous and order that Pedraza receive benefits in accordance with her

decrease in income in conformity with this opinion.

      Reversed and remanded for further proceedings consistent with this opinion.

      LAGOA, J., concurs.




                                        6
                            Pedraza v. Reemployment Assistance Appeal, etc., et al.
                                                            Case No. 3D13-1190


      SHEPHERD, Senior Judge, concurring in result.

      I concur in the result in this case. I write only to rail once again, as I have on

more than one prior occasion—most recently, in Housing Opportunities Project,

etc. et al, v. SPV Realty, LC, 42 Fla. L. Weekly D44a (Fla. 3d DCA Dec. 21,

2016)—that this Court should seriously consider the constitutional implications of

blindly adhering to the mantra so regularly incanted by the Court to support,

uphold, or approve agency decision-making that “an agency’s interpretation of a

statute, with which it is entitled with administering shall be accorded great weight

and should not be overturned unless clearly erroneous, arbitrary, or unreasonable,”1

as well as the many variations on the theme.

      As Justice Thomas recently explained in the context of federal legislation

where the same legal line is often reflexively, I would say mindlessly, invoked to

approve agency interpretation of congressional legislation, Chevron deference

“wrests from Courts the ultimate interpretative authority to ‘say what the law is,’

Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803)[2], and hands it over to

1 Majority op. at 5.
2 See Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 188-89 (2006)
(“Ironically, Justice Stevens, the author of Chevron, had no broad ambitions for the
decision; the Court did not mean to do anything dramatic. But shortly after it
appeared, Chevron was quickly taken to establish a new approach to judicial
review of agency interpretations of law, going so far as to create a kind of counter-

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the Executive.” Michigan v. E.P.A., 135 S. Ct. 2699, 2712 (2015) (Thomas, J.,

concurring);3 cf. Bush v. Schiavo, 885 So. 2d 321, 330 (Fla. 2004) ("Under the

express separation of powers provision in our state constitution, 'the judiciary is a

coequal branch of the Florida government vested with the sole authority to exercise
Marbury for the administrative state. Chevron seemed to declare that in the face of
ambiguity, it is emphatically the province and duty of the administrative
department to say what the law is.” (footnotes omitted)).
3 See also Antonin Scalia, Judicial Deference to Administrative Interpretations of

Law, 1989 Duke L.J. 511, 513-14 (1989):
             It is not immediately apparent why a court should ever
             accept the judgment of an executive agency on a question
             of law. Indeed, on its face the suggestion seems quite
             incompatible with Marshall's aphorism that “[i]t is
             emphatically the province and duty of the judicial
             department to say what the law is.” Surely the law, that
             immutable product of Congress, is what it is, and its
             content—ultimately to be decided by the courts—cannot
             be altered or affected by what the Executive thinks about
             it. I suppose it is harmless enough to speak about “giving
             deference to the views of the Executive” concerning the
             meaning of a statute, just as we speak of “giving
             deference to the views of the Congress” concerning the
             constitutionality of particular legislation—the mealy-
             mouthed word “deference” not necessarily meaning
             anything more than considering those views with
             attentiveness and profound respect, before we reject
             them. But to say that those views, if at least reasonable,
             will ever be binding—that is, seemingly, a striking
             abdication of judicial responsibility.
(footnote omitted). Justice Scalia ultimately concludes, however, that agency
deference is theoretically justified as a function of Congress’s intent to confer
discretion upon the agency. Id. at 516. But see Philip Hamburger, Chevron Bias,
84 Geo. Wash. L. Rev. 1187, 1196 n.28 (2016) (“Certainly, it often is said that
Congress delegates judicial power to agencies, but this cannot be delegation, for
the Constitution places the judicial power in the courts, and Congress cannot
subdelegate a power it does not have. U.S. Const. art. III, § 1.”).


                                         8
the judicial power[.]'"); Fla. Code of Jud. Conduct, Canon 1 (“A Judge Shall

Uphold the Integrity and Independence of the Judiciary.”).

      Perhaps even more profound, is the due process problem of automatically

taking the side of one of the parties in the case. As one percipient scholar has

explained:

             It ordinarily would be outrageous for a judge in a case to
             defer to the views of one of the parties. And it ordinarily
             would be inconceivable for judges to do this regularly by
             announcing ahead of time a rule under which judges
             should defer to the interpretation of one of the parties in
             their cases, let alone the most powerful of parties, the
             government. Nonetheless, this is what the judges have
             done. It therefore is necessary to confront the reality that
             when judges defer to the executive's view of the law,
             they display systematic bias toward one of the parties.

Hamburger, supra note 2, at 1212; see also Fla. Code of Jud. Conduct, Canon 3

(“A Judge Shall Perform the Duties of Judicial Office Impartially and

Diligently.”).

      In my view, deference to an agency’s construction or application of a statute

implicates important due process and separation of powers questions deserving of

serious contemplation by future members of this and other courts around the state.

The fundamental concern of keeping the individual branches separate is that the

fusion of the powers of any two branches into the same department would

ultimately result in the destruction of liberty. E.g., Ponder v. Graham, 4 Fla. 23,

42-43 (1851); The Federalist Nos. 47, 51 (James Madison).             We should be


                                          9
reluctant to so readily abandon our judicial independence and alter the structure

upon which our entire system of government is based. Moreover, we should not be

so quick to embrace a course of conduct that results in systemic bias towards one

of the parties. While I recognize the reality of agency deference, I share Justice

Thomas’s concern that “we seem to be straying further and further from the

Constitution without so much as pausing to ask why. We should stop and consider

that document before blithely giving the force of law to any other agency

‘interpretations[.]’” Michigan, 135 S. Ct. at 2713.




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