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 interpretations prospectively is fundamental to agency decision-making.

Davis, Administrative Law Text § 17.07 (1972). “The making of an error in one case, if error it was, gives ... no right to its perpetuation.” Sirbo Holdings, Inc. v. C.I.R., 509 F.2d 1220, 1222 (2d Cir.1975).

In Automobile Club of Michigan v. Commissioner, 353 U.S. 180 , 77 S.Ct. 707 , 1 L.Ed.2d 746 (1957), the Commissioner of Internal Revenue revoked a ruling which was based on an erroneous interpretation of the law. The Court upheld the Commissioner’s determination that a party previously found to be tax exempt was now liable for both future and past taxes. The Court cited Automobile Club with approval in Dixon v. United States, 381 U.S. 68, 72-3 , 85 S.Ct. 1301, 1304 , 14 L.Ed.2d 223 (1965), and noted that the Commissioner’s power to retroactively correct mistakes of law “is no more than a reflection of the fact that Congress, not the Commissioner, prescribes the tax laws.”

To force the government to pay Demarin-is’ REPP benefits here would create an obligation that conflicts with the congressional scheme for the allocation of the public treasury. See Schweiker v. Hansen, 450 U.S. 785, 788 , 101 S.Ct. 1468, 1470 , 67 L.Ed.2d 685 (1981). Demarinis is not entitled to REPP benefits because he was not “laid off.” The Act provides benefits for “affected employees” who meet the eligibility requirements of § 205(b). “Affected employees” are defined as “covered employees” who are either (1) laid off by an “affected employer” within a certain time period or (2) determined by the Secretary to be adversely affected by the expansion of the Redwood National Park. § 201(11). The Secretary ruled that voluntarily leaving work with good cause is not a layoff within the meaning of the Act. The Secretary’s construction of the term “layoff” is the only reasonable interpretation of the Act.

Congress enacted Title II of the Act to provide economic benefits to employees who were “directly affected’’ by the park’s expansion. H.R.Rep. No. 95-581, 95th Cong., 2d Sess. 18, reprinted in 1978 U.S.Code Cong. & Ad.News 463, 464 (emphasis added). The legislative history shows that the REPP was intended to assist persons who had been “thrown out of work” as a result of the park’s expansion. 124 Cong.Rec. 7799 (Mar. 21, 1978).

Demarinis contends that the word “layoff” is used as a term of art and that it refers to the status of being out of work. He thus equates “layoff” with the term “unemployed” as it is defined in Cal.Un-emp.Ins.Code § 1252. Title II, however, not only uses the term “layoff” but also includes a definition of “layoff” that is considerably narrower than the definition of unemployed. Compare § 201(12) of the Act with Cal.Unemp.Ins.Code § 1252. See also Cal.Unemp.Ins.Code § 1256. The Act’s definition is consonant with the general usage of the term. Black’s Law Dictionary 799 (5th ed. 1979).

*1269 Neither of the Act’s two references to the California Unemployment Insurance Code supports Demarinis’ construction. See § 203, 205(b). If Congress had intended that eligibility for REPP benefits be determined according to state unemployment insurance law, Congress could have made this explicit in the statute. In the employment assistance acts under consideration in both Tongol v. Usery, 601 F.2d 1091 (9th Cir. 1979) and Martinez v. Marshall, 573 F.2d 555 (9th Cir.1978), it was explicitly provided that eligibility be determined under the applicable state unemployment compensation law. See also The Trade Act of 1974, 19 U.S.C. § 2294 .

Demarinis was thus never eligible for REPP benefits. The EDD’s initial determination of eligibility should not give him a vested right to the perpetuation of its error.