John E. Demarinis v. Raymond J. Donovan, Secretary of Labor

728 F.2d 1266 John E. DEMARINIS, Petitioner, v. Raymond J. DONOVAN, Secretary of Labor, Respondent. No. 83-7489. United States Court of Appeals, Ninth Circuit. Argued Nov. 18, 1983. Submitted March 21, 1984. Decided March 21, 1984. John William Cumming, Eureka, Cal., for petitioner. Dennis A. Paquette, Dept. of Labor, Washington, D.C., for respondent. Petition For Review Of A Final Determination Of The Secretary Of Labor. Before GOODWIN, SCHROEDER and FARRIS, Circuit Judges. GOODWIN, Circuit Judge: 1 John E. Demarinis appeals from the Assistant Secretary of Labor's decision that he is ineligible for Redwood Employee Protection Program (REPP) benefits under Title II of the Redwood National Park Expansion Act of 1978, Pub.L. No. 95-250, Secs. 201-13 , 92 Stat. 163 , 172-82. 2 Demarinis was employed as a lab technician for over nine years with the Samoa Lumber Mill of the Louisiana-Pacific Corporation. In early November, 1978, the hourly employees went on strike, and Demarinis was temporarily assigned to an eight-hour graveyard shift tending the boiler. During this period he worked overtime to complete his regular duties as a lab technician. On November 8, 1978, he refused to work a…

John E. Demarinis appeals from the Assistant Secretary of Labor’s decision that he is ineligible for Redwood Employee Protection Program (REPP) benefits under Title II of the Redwood National Park Expansion Act of 1978, Pub.L. No. 95-250, §§ 201-13, 92 Stat. 163 , 172-82.

Demarinis was employed as a lab technician for over nine years with the Samoa Lumber Mill of the Louisiana-Pacific Corporation. In early November, 1978, the hourly employees went on strike, and Demarinis was temporarily assigned to an eight-hour graveyard shift tending the boiler. During this period he worked overtime to complete his regular duties as a lab technician. On November 8, 1978, he refused to work a twelve-hour graveyard shift tending the boiler, and was discharged from his position as a lab technician. Demarinis testified before the administrative law judge that he *1267 did not refuse to work, but rather sought to be reassigned away from the graveyard shift.

The California Employment Development Department (EDD) found Demarinis eligible for both State unemployment compensation benefits and REPP benefits. An administrative law judge affirmed on the grounds that the refusal to work constituted a…

dissenting:

I respectfully dissent. I would affirm the Assistant Secretary of Labor’s decision that Demarinis is ineligible for REPP benefits on the grounds that Demarinis was not “laid off” and therefore not eligible for REPP benefits, and that 29 C.F.R. 92.50(c) *1268 does not prevent the EDD from correcting its erroneous interpretation of the Act.

Twenty-nine C.F.R. 92.50(c) and Cal.Un-emp.Ins.Code § 1332 provide that the EDD may, for good cause, reconsider any determination within twenty days after notice of the determination. This reconsideration provision was intended to allow supervisors to correct errors in the vast number of eligibility determinations made by interviewers, and thus to facilitate the EDD’s performance of its duty to pay or deny benefits promptly. See Cal.Unemp.Ins. Code § 1326; Miranda v. California Unemployment Insurance Appeals Board, 36 Cal.App.3d 213, 218-20 , 111 Cal.Rptr. 419, 422-23 (1973).

While this provision prevents the EDD from correcting some erroneous eligibility determinations, it should not be applied to prevent the agency from correcting its erroneous interpretations of law. An agency’s power to correct its mistakes of law and apply new…