855 F2d 862 Wesley R. McCabe v. Ann McLaughlin, Secretary of Labor

855 F.2d 862

Unpublished Disposition

Wesley R. McCABE, Petitioner,
Ann McLAUGHLIN*, Secretary of Labor, Respondent.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

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No. 87-7109.


United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 9, 1987.
Decided Aug. 9, 1988.


Before SKOPIL and POOLE, Circuit Judges, and JESSE W. CURTIS, Senior District Judge***




Wesley McCabe appeals the Secretary of Labor's decision that he is no longer entitled to benefits under Title II of the Redwood National Park Expansion Act of 1978 (Redwood Act), Pub.L. No. 95-250, Secs. 201-213, 92 Stat. 163, 172-82 (1978). McCabe contends that the Secretary erred in concluding that the California Employment Development Department (EDD) could reconsider his eligibility for benefits. We agree and reverse.



McCabe worked for Simpson Timber as a tallyman. Because McCabe was laid off in 1978, the EDD determined that McCabe was eligible for benefits commencing August 5, 1980. On August 22, 1980 McCabe resigned from his position with Simpson. The following Monday McCabe began work for lower wages as a truck driver for Bettendorf Trucking. Because of temporary layoffs from Bettendorf, McCabe applied for resumption of his benefits on August 16, 1981 and March 22, 1982. On both applications McCabe indicated that he voluntarily quit his job with Simpson in 1980. The EDD, however, overlooked this disclosure that he was not laid off and awarded him benefits.


When McCabe applied for a severance payment after twenty weeks from the date he left Simpson, the EDD reviewed McCabe's file and discovered that McCabe was not laid off by Simpson in 1980. The EDD then notified McCabe that he was ineligible for future benefits and must return the benefits he had received.

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McCabe appealed the EDD's determination. Ultimately the Secretary of Labor held that McCabe was no longer entitled to Redwood Act benefits. The Secretary, however, did not require McCabe to return the overpayments because they were the result of the agency's oversight.



The Redwood Act provides income and other benefits to forest industry workers who have been laid off because of expansion of the Redwood National park. See Redwood Act Secs. 201-213. Once benefits are awarded, the EDD may reconsider the award subject to the same conditions and time limits set forth in the California Unemployment Insurance Code and Title 22 of the California Administrative Code. See 29 C.F.R. Sec. 92.50(c) (1987). California law establishes a twenty day period in which the EDD may reconsider its initial determination of eligibility. Cal.Unemp.Ins.Code Sec. 1332(a) (West Supp.1984).


Here, the Secretary interpreted the Redwood Act as permitting the EDD to reconsider McCabe's eligibility for future benefits outside the twenty day time limit. We conclude, however, that because the EDD discovered its oversight after the twenty day period, section 1332 bars the EDD from reconsidering McCabe's eligibility. See Jackson v. Donovan, 758 F.2d 1313, 1314-15 (9th Cir.1985). The EDD did not attempt to correct an erroneous interpretation of law, see, e.g., Turner v. Brock, 813 F.2d 1494, 1498-99 (9th Cir.1987), but rather to correct its failure to note a reported fact in McCabe's application. Therefore, we conclude that the Secretary is barred from reconsidering McCabe's eligibility for prospective benefits. See Jackson, 758 F.2d at 1314.




Ann McLaughlin has been substituted for William E. Brock III. Fed.R.App.P. 43


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


The Honorable Jesse Curtis, United States District Judge for the Central District of California, sitting by designation