UNEMPLOYMENT INSURANCE PROGRAM LETTER NO.23-08
Supplemental Appropriation Act, 2008, Title IV— Emergency Unemployment Compensation
To provide states with instructions for implementing and operating the Emergency Unemployment Compensation, 2008 (EUC08) program, including fiscal and reporting instructions.
STATE WORKFORCE AGENCIES
DOUGLAS F. SMALL
Deputy Assistant Secretary
Date: July 07, 2008
Expiration Date: July 07, 2009
What could possibly go wrong?
Background 1: The Code of Federal Regulations...according to Wikipedia
Wikipedia Code of Federal Regulations
"The Code of Federal Regulations (CFR) is the codification of the general and permanent rules and regulations (sometimes called administrative law) published in the Federal Register by the executive departments and agencies of the federal government of the United States."
"Every regulation in the CFR must have an "enabling statute," or statutory authority. The United States Code (U.S. Code) precedes the CFR and contains statutes enacted by Congress. The CFR contains regulations, which spell out in further detail how the executive branch will interpret the law. The two documents represent different stages in the legislative process. The U.S. Code is a codification of legislation, while the CFR serves as administrative law. Administrative law exists because the Congress often grants broad authority to executive branch agencies to interpret the statutes in the U.S.Code (and in uncodified statutes) which the agencies are entrusted with enforcing. Congress may be too busy, congested, or gridlocked to micromanage the jurisdiction of those agencies by writing statutes that cover every possible detail, or Congress may determine that the technical specialists at the agency are best equipped to develop detailed applications of statutes to particular fact patterns as they arise."
"Under the Administrative Procedure Act, the agencies are permitted to promulgate detailed rules and regulations through a public "rulemaking" process where the public is allowed to comment, known as public information. After a period of time, the rules and regulations are usually published in the Federal Register."
" Effect of administrative lawBackground 2: Department of Labor Compliance Pages
The rules are treated by the courts as being as legally binding as statutory law, provided the regulations are a reasonable interpretation of the underlying statutes. This "reasonable interpretation" test or Chevron doctrine was articulated by the U.S. Supreme Court in a unanimous decision (six voting, three recused) involving a challenge to new Clean Air Act regulations promulgated by the Reagan administration in 1981. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (467 U.S. 837 (1984).)"
Code of Federal Regulations (CFR) Pertaining to the Department of Labor
Title 20 — Employees' Benefits
Chapter V — Employment and Training Administration, Department of Labor
Part 615—Extended Benefits in the Federal-State Unemployment Compensation Program
Emergency Unemployment Compensation Program Pre-Errors:
Attachment A - Implementing and Operating Instructions for EUC08
When you become eligible for EUC08 payments, you are known as an "exhasutee" (Page A-3 Eligibility for EUC08 1. (a)-(b)(1)).
Question for the class:
What do you do when the claimant for EUC08 establishes a valid new benefit year? Doing so would mean they have gone back to work for some period of time and earned enough wages to qualify for a new regular compensation state unemployment claim. So now what happens with the EUC08 claim and any remaining balance?
(2) Exhaustees cease to be exhaustees when they can establish a valid new benefit year; therefore, at each quarter change, the state must check to see if an individual meets the state’s requirements to establish a new benefit year. If the individual can establish a new benefit year, s/he would no longer qualify for the EUC08 claim. In these cases, the claimant should be advised that s/he no longer qualifies for the EUC08 claim and that s/he can file a regular UI claim.This section of the EUC08 Implementing and Operating Instructions is an interpretation of the following from the Code of Federal Regulations:
Once the claimant qualifies for a new claim, the payments on the EUC08 claim must end, even if the Weekly Benefit Amount (WBA) for the new claim is lower than what the claimant was receiving on the EUC08 claim.
Note. The requirement to check eligibility for regular compensation at each quarterly change was not explicitly stated in the guidance implementing the Temporary Extended Unemployment Compensation Act of 2002. However, the Department has determined that it is a method of administration necessary for assuring that individuals have in fact exhausted regular compensation as required by the Act. "
- Page A-3 and A-4 Determining Exhasutees 1. (b)(2))
(2) An individual who becomes an exhaustee as defined above shall cease to be an exhaustee commencing with the first week that the individual becomes eligible for regular compensation under any State law or 5 U.S.C. chapter 85, or has any right to unemployment compensation as provided in paragraph (a)(1)(v) of this section, or has received or is seeking unemployment compensation as provided in paragraph (a)(1)(vi) of this section. The individual's Extended Benefit Account shall be terminated upon the occurrence of any such week, and the individual shall have no further right to any balance in that Extended Benefit Account.Emergency Unemployment Compensation Program Post-Errors:
UNEMPLOYMENT INSURANCE PROGRAM LETTER NO.23-08, Change 1
1. Emergency Unemployment Compensation, 2008 – Questions and Answers
Attachment to UIPL No. 23-08, Change 1
Emergency Unemployment Compensation, 2008
Questions and Answers
D. Monetary Eligibility (page 5-6)Summary:
7. Question: May an individual have more than one EUC08 claim?
Answer: Yes. An individual may establish a claim for EUC08, qualify for a new UC benefit year, exhaust that benefit year, exhaust the first EUC08 claim and subsequently qualify for a second EUC08 claim based on the new (most recent) benefit year.
An individual is determined eligible for EUC08 based on a UC benefit year that ended on May 12, 2007. S/he receives 10 weeks of EUC08 prior to the calendar quarter change, at which point s/he qualifies for a new UC benefit year. Because the individual qualifies for regular UC, EUC08 payments must stop.
The individual exhausts benefits based on his/her new UC benefit year; therefore, s/he is again an exhaustee for EUC08 purposes. S/he may collect the remaining entitlement on his/her existing (first) EUC08 claim and after exhausting these benefits s/he may file a new (second) EUC08 claim based on the new (most recent) UC benefit year. The new/most recent benefit year is the applicable benefit year for a second EUC08 claim, if the initial claim for that second claim is for a week of unemployment ending on or before March 31, 2009.
The Q&A section above, regarding "Monetary Eligibility/Multiple EUC Claims", does not comply with Program Letter 23-08 Attachment A, Operating Instructions, 1. (b)(2). The EUC08 payments "must end" is what it says. There is no listed provision in the Implementing and Operating Instructions anywhere that gives permission to start up this EUC08 claim again. There is no regulation nor statute to back this up. They would have used the phrasing "payments must stop" in that case. Then they would have explained in detail how the claim would be re-opened, and also how to keep track of the second EUC claim that would be "deferred" until the claimant could exhaust the older balance first. The don't...
The Q&A section above does not comply with the federal administrative law, found in the Code of Federal Regulations shown earlier, found at Title 20 Chapter V part 615.5(2), "Definition of Exhaustee". This specifically states, in the exact circumstances described by the Q&A above, that, "The individual's Extended Benefit Account shall be terminated upon the occurrence of any such week, and the individual shall have no further right to any balance in that Extended Benefit Account".
The Q&A was a mistake. People do make them all the time. In this case the "policy experts" at the Department of Labor Employment & Training Administration, did make what appears to be a 100% correct interpretation with UIPL 23-08 Attachment A. But, when they came to the Change 1 Q&A section, they made a historic very contradictory and non-compliant policy error which they have yet to explain.
This has caused a great deal of waste, harm, denial and fraud. I was a victim of this mistake...just like millions of other struggling workers and families have been. I was one of the very few that fought through an appeal and prevailed against this mistake. I tried to act as whistle blower, pointing out the contradictions between the DOL ETA EUC08 guideline Q&A section vs the CFR. I filed a complaint with my state employment agency (EDD). I filed a precedent request with the state UI appeal board (CUIAB). I presented public concerns and evidence to many state and federal agencies. I filed a recovery fraud complaint (RATB-2011-DOL-9DF2506-0). I was in contact with other victims who had lost their appeals. Millions of people seem to have been affected for over the last four years.
This is what I got instead:
The rest of the Story on DK...While I was trying to request oversight, and while the state and federal agencies were working together during the 2/7-2/17 actions described in the "rest of the story" above, I also discovered, via my earlier FOIA request, that the DOL ETA was questioning the source of their implementation themselves even after they squashed my precedent decision :
Read me First:
Mr. President there is a serious problem with the EUC08 program
a Recovery Fraud Complaint Ignored...
From: Simonetta, Suzanne-Schwartz - ETA
Email March 30, 2012 11:57AM
To: Johnston, Robert - ETA, Castillo, Betty - ETA, Wagner, Robert - ETA
Cc: Gay Gilbert - ETA
Subject: Facebook Questions
"Below is a question about paying EUC with respect to multiple benefit years.
(I note that there are some inaccuracies in the premises and citations in the incoming email.)
As I recall, ETLS made the call that entitlement to EUC with respect to a prior benefit BY doesn't end when there is entitlement to EUC with respect to a subsequent benefit year.
Do any of you have an email or a Q and A that provides the rationale for this position?"
This communication is referring to an email I sent to Treci Johnson - OPA on Friday March 30, 2012 at 9:43AM. At this time I was unaware of what had happened 2/7-2/14 and was still requesting oversight post DOL OIG 2/17/12 refusal to investigate. I had pointed out the specific CFR regulations that seem to have been violated by the DOL ETA Q&A mistakes in this email and via Facebook.
They never responded. The DOL ETA seems to have violated the Freedom of Information Act since then, with regards to my follow up attempts to find out what specific response documents exists to this email. Someone must have responded right? It does not appear that the DOL wants me to learn or discover any more from FOIA nor the Privacy Act. I think I surprised them with it the first round. It is looking like we will have to sue them over this to get the documents. If they were correct, then they could just respond right? ETLS must have something to say about it.
The DOL ETA/EDD/CUIAB could not overturn my appeal case during the 2/7-2/17/12 actions that squashed my precedent decision from Case No A0-265448. They still refused to talk to me openly, but some within the DOL ETA, like Suzanne Simonetta, were questioning what legal basis the "Multiple EUC Claims policy" had and where did it come from. I wonder what the response was?
Through this communication it has been partially revealed that the Division of Employment and Training Legal Services (ETLS), "made the call", but there seems to be no regulatory statute to back it up does there? They must have one. They cannot just make up policy as they like. Remember that the feds tried to have EDD and the CUIAB in California overturn my case (2/7-2/14). If they were legally correct and justified, why did they not even try to take it to Superior Court using a writ of mandate to overturn this standing decision? If the decision, had in fact, violated federal law, then why not put it before an "impartial" judge?
The Department of Labor Office of Inspector General on 2/17/12 refused to investigate the evidence that exposed these mistakes. They did not try to refute the evidence in any way either. They made pretty weak excuses and tried to classify this as a "state determination matter" that they had no authority to be involve in. But we now know from FOIA that this is utter BS. They were all working together to decide "what vehicle" the "response" to me should be prior to Feb 2012 (DOL ETA, DOL OIG, EDD, CUIAB, White House?).
The DOL ETA was actively engaged on 2/7/12 with a "state determination mater", making threats about it, and making demands to overturn my CUIAB case (A0-265448 10/20/11). They said that the decision violated federal law...law that they did not cite...instead they offered up the same Q&A errors my appeal case, evidence and complaints have refuted: The UIPL 4-10 Q&A version of the same "Multiple EUC Claim" mistake shown above from UIPL 23-08 Change 1.
UIPL 4-10 Section D. Page 3+4 Multiple EUC Claims
Why also has the Recovery Accountability and Transparency Board, since March 2012 gone out of their way to respond as little as possible or not at all? They haven't done anything other than forward the complaints and evidence to all the "accused parties" and allowed them to dictate how to run the investigation against themselves. Even the FOIA revelations won't budge a response out of them.
I have repeatedly challenged the Department of Labor to provide the compliance information to justify their "Multiple EUC claims" mistake. They are dead silent, except for talking to their own legal counsel I bet. EDD lost a major appeal in California that backs up what I am saying. None of them could overturn the decision since then. My payments for EUC08 continue, but apparently California is paying for it and not the feds (see 2/7/12 DOL ETA letter). They won't respond either way. I have contacted Suzanne above and the ETLS wing of the DOL. I have asked them directly to refute me. Show me the legal basis for that Q&A...pretty please?
THERE HAS BEEN NO ANSWER NOR REPLY.
If they were right don't you think they could have easily provided the information and would have done so a very long time ago? I am after all sending them copies of all my media and public disclosure...right before the general election. In addition to the standing FOIA requests with the DOL OIG, DOL ETA and RATB, I have a current new one aimed at the the White House, who was informed by the DOL ETA on 10/18 and 10/21/11 about CUIAB Case No A0-265448 (WH663175/WH9262011-61). I am asking them what they know and how they have been involved, if at all. Wouldn't you think they would step right up and tell everyone that I am wrong and here are the specific regulations that back them up?
If not, then what exactly are they doing and what do they plan to do next about all of this?
Wed Sep 12, 2012 at 10:39 PM PT: Petitioning The President of the United States:
The Obama Administration is robbing the Unemployed out of ARRA Funds