COLORADO COURT OF APPEALS
_________________________________________________________________
Court of Appeals No.: 04CA0385
Industrial Claim Appeals Office of the State of Colorado
DD No. 153842003
_________________________________________________________________
Larry Seltzer,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and
Division of Employment,
Respondents.
_________________________________________________________________
ORDER SET ASIDE AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by: JUDGE ROTHENBERG
Casebolt, J., concurs
Carparelli, J., dissents
Announced: January 13, 2005
_________________________________________________________________
Larry Seltzer, Pro Se
Ken Salazar, Attorney General, Laurie K. Rottersman, Assistant
Attorney General, Denver, Colorado, for Respondent Industrial
Claim Appeals Office
No Appearance for Respondent Division of Employment
Petitioner, Larry Seltzer (claimant), seeks review of a
final order of the Industrial Claim Appeals Office (Panel) that
affirmed a hearing officer’s decision disqualifying him from
receiving Temporary Extended Unemployment Compensation (TEUCA)
benefits, which are available to certain airline related
workers pursuant to the Emergency Wartime Supplemental Appropriations Act
(Act), Pub. L. No. 10811, § 4002(a), 117 Stat. 559, 607 (2003).
We set the Panel’s order aside and remand for further
proceedings.
I.
Claimant was employed as a technical analyst and performed
computer programming work for Galileo International (employer).
He worked on and wrote computer programs, including programs for
individual airlines, that enabled passengers to book airline
flights on the Internet.
Employer laid claimant off in October 2001. The hearing
officer initially determined that his separation was caused by a
"lack of work result[ing] from a reduction in business for the
employer because the public and corporate customers stopped
flying as a result of [the events of September 11, 2001]."
However, the hearing officer found that claimant was not entitled
to receive TEUCA benefits because his "layoff was not due to a
reduction in services provided by the certified air carriers but
was caused by a reduction in business when people stopped booking
airline seats thereby not using the employer’s services."
Claimant appealed the decision, contending he was not
notified he would have to prove his employer’s loss of revenue
was due to a decrease in air flights. The Panel agreed with
claimant that "he was not provided with notice of the dispositive
factual issue" and remanded for additional proceedings to allow
"claimant the opportunity to present relevant evidence concerning
whether his separation from employment was attributable to a
reduction in services provided by an air carrier."
On remand, claimant presented evidence that after September
11, 2001, his workload decreased because airlines scheduled fewer
flights and because fewer people were flying.
The hearing officer issued a modified decision that again
denied claimant benefits. The hearing officer found that (1)
"claimant’s testimony establishes that it was the flying public’s
reluctance to fly [after September 11, 2001] and the reduction in
the purchase of airline tickets that caused the reduction in
flights"; (2) "claimant’s lack of work was not due to a reduction
in service by a certified air carrier, but was due to the
public’s reluctance to fly"; (3) "[e]ven on reduced schedules,
airlines were flying at only 40% of capacity, leaving 60% of the
seats unsold"; and (4) these circumstances caused claimant’s job
separation. On review, the Panel affirmed.
II.
Claimant contends the Panel erred in affirming the hearing
officer’s determination that he was not entitled to TEUCA
3benefits.
We agree.
"[T]he TEUC Act of 2002 created federally funded
unemployment compensation benefits for individuals who have
exhausted their state and federal unemployment compensation
benefits and who qualify to receive TEUC benefits." Chiccitt v.
Unemployment Comp. Bd. of Review, 842 A.2d 540, 542 (Pa. Commw.
Ct. 2004).
In 2003, the Act was amended, and special rules were created
for determining eligibility for certain displaced airlinerelated
workers who may qualify for additional benefits identified as
TEUCA benefits. See Workforce Security Programs: Unemployment
Insurance Program Letter Interpreting Federal Law (UIPL No. 3002,
Changes 2 & 3), 68 Fed. Reg. 35429 (June 13, 2003). The
Department of Labor(DOL) issued a letter with the stated purpose
"to provide State Workforce Agencies (SWAs) instructions for
implementing the changes to the TEUC program related to displaced
airline and related workers." The instructions state that "SWA’s
are required to continue to follow the [DOL’s] interpretation of
the TEUC Act." 68 Fed. Reg. at 35429.
The DOL instructions recognize that certain procedures "may
differ from state law provisions." For example, the instructions
provide that late information received from the employer must be
considered, and if it supports a denial of benefits, "a
redetermination must be issued." 68 Fed. Reg. at 35441. To the
extent state law differs from the DOL instructions, the DOL
instructions control in determining a claimant’s eligibility for
TEUCA benefits.
To be eligible to receive TEUCA benefits here, claimant was
required to demonstrate "qualifying employment" under the Act.
That showing had two components. First, he had to establish that
his employment was sufficiently tied to the airline industry. As
pertinent here, he had to demonstrate that his employment was
"with an upstream producer or supplier for an air carrier." See
Pub. L. No. 10811, § 4002(a)(2)(A).
The hearing officer found that claimant established the
first requirement by showing a sufficient nexus between his
employment and the airline industry. As the Panel noted in its
initial order, the hearing officer found, in effect, that
employer provided contract services to an air carrier. Although
this was an issue during the first hearing, by the time of the
second hearing, it appears that employer’s status as an upstream
producer or supplier for an air carrier was no longer in dispute.
The second requirement is that claimant establish he became
separated from his employment based upon a qualifying reason.
Specifically, he was required to show his separation was "due, in
whole or in part, to . . . reductions in service by an air
carrier as a result of a terrorist action or security measure."
See Pub. L. No. 10811, § 4002(a)(2)(B)(i) (emphasis added). The
Act defines "terrorist action or security measure" as "a
terrorist attack on the United States on September 11, 2001, or a
security measure taken in response to such attack." See Pub. L.
No. 10811, § 4002(a)(7).
The DOL instructions require that a form be sent to the
employer requesting information regarding the claimant’s
eligibility for TEUCA benefits. The record in this case
includes the form sent to claimant’s employer asking whether he
was laid off from employment "due to a loss of business, in whole
or in part, caused by [among other reasons]: [t]he reduction in
airline services following the events of September 11, 2001, or
related security measures." Employer answered "Yes" to this
question.
The DOL instructions also explain what occurs where, as
here, the state disagrees with the employer’s conclusion
regarding a claimant’s TEUCA eligibility:
Question: Information provided by the
employer indicates that the employment is
"qualifying employment," but the state has
reason to doubt the accuracy of this
information. Is the state required to accept
the employer’s statement?
Answer: No. However, the state must have
credible information to refute the employer’s
assertion and to support a determination of
TEUCA ineligibility.
68 Fed. Reg. at 35443 (emphasis added).
Thus, once the employer asserts that a claimant is eligible
for TEUCA benefits, the state must present credible information
to refute that assertion. At issue here is whether the hearing
officer erred in finding that the Division made such a showing,
and whether, in doing so, it properly applied the federal
statute. We conclude the hearing officer and the Panel erred as
a matter of law in construing the statute. Accordingly, we
remand for further proceedings so that the hearing officer may
apply the proper standard and determine whether the Division
refuted employer’s assertion of eligibility.
The hearing officer is the sole arbiter of conflicting
evidence, and the hearing officer's factual findings are binding
on appeal if they are supported by substantial evidence or
plausible inferences from the record. Davison v. Indus. Claim
Appeals Office, 84 P.3d 1023 (Colo. 2004); Postlewait v. Midwest
Barricade, 905 P.2d 21, 24 (Colo. App. 1995).
However, the question of statutory construction is the
traditional province of the courts. Colo. Dep't of Labor &
Employment v. Esser, 30 P.3d 189 (Colo. 2001); Bd. of County
Comm'rs v. Vail Assocs., Inc., 19 P.3d 1263 (Colo. 2001).
In Salomon Forex, Inc. v. Tauber, 8 F.3d 966, 975 (4thth
Cir. 1993) discussed the analysis used to determine the meaning
of a federal statute:
The analysis begins, as with the
interpretation of any legislative enactment,
with the language of the Act, and if that
conclusively reveals Congress' intent, the
analysis ends. In arriving at the plain
meaning, we apply long recognized principles
of interpretation. We assume that the
legislature used words that meant what it
intended; that all words had a purpose and
were meant to be read consistently; and that
the statute's true meaning provides a
rational response to the relevant situation.
7Conversely, we presume that language added by
amendment was not mere surplusage; that
undefined terms mean no more than the
language imports; and that a statute is not
selfcontradictory or otherwise irrational.
At the remand hearing in this case, claimant presented
uncontroverted evidence that after the events of September 11,
2001, his workload was reduced because there were fewer scheduled
flights; people were afraid to fly, and therefore fewer people
were doing so; and as a result, there was significantly less use
of employer’s computer system, which resulted in his job layoff.
The Division did not call any witnesses with personal
knowledge of the facts. But two Division representatives at the
hearing reiterated the Division’s position that a shortage of
passengers wanting to book flights was insufficient to show a
"reduction in service."
The hearing officer asked the Division representative: "You
gave a definition of reduction in service. Where did that come
from?" The Division representative answered:
This came from the continual updates that we
get from the federal government clarifying
the airline extension program, who’s
eligible, who isn’t, some questions and
answers, explaining why somebody might be
eligible versus why somebody else might not
be eligible for the program.
In this particular case, they are talking
about security screeners who lost their jobs
because of a loss of contract and the dispute
was whether that loss of contract was due to
increased security measures . . . .
During crossexamination of the Division representative,
8claimant’s counsel asked: "And you’re equating reduction in
flights to reduction in services?" He answered: "[Y]es, that’s
true. The federal government has said a reduction in flight[s]
is a reduction in ...or reduction in services is a reduction in
flights."
There are no exhibits in the record from the hearing, and
both parties have attached the same version of the DOL
instructions to their briefs. The only reference to security
screeners in these instructions is as follows:
Question: The [Transportation Security
Administration] announced that later this
year it will cut 11% of the security
screeners at the nation’s airports. Does
this employment at airports with the TSA
constitute a "qualifying employment" for
TEUCA purposes?
Answer: No. These layoffs are not due to a
qualifying reason for separation, i.e.,
layoffs due to a reduction in service by the
certified air carrier due to the September
11, 2001, terrorist actions . . . .
68 Fed. Reg. at 35443.
We assume, however, the Division is referring to an
attachment to its brief filed October 7, 2003, which is a
forwarded email to an unidentified person from an unidentified
person. According to the Division’s brief, the attachment
provides guidance concerning security screeners and states,
"There has to be a connection between the individual’s separation
and a reduction in service by the air carrier (i.e., less
flights, no need for the individual’s services) or the closure of
an airport, rather than simply security measures undertaken as a
result of the 9/11 terrorist attacks." Although neither party
has cited any portion of the Federal Register verifying this
language, claimant’s attorney did not question its existence at
the hearing. Thus, we have no reason to doubt its validity.
The hearing officer found that there was, in fact, a
reduction in scheduled flights and that such reduction was caused
by "the flying public’s reluctance to fly and the reduction in
the purchase of airline tickets." But the hearing officer
adopted the legal position of the Division that a shortage of
passengers wanting to book flights was insufficient. The Panel
adopted the same interpretation, stating that "there must be a
causal connection between any reduction in flights and the
claimant’s unemployment," and that a "shortage of passengers
wanting to book flights" was insufficient (emphasis added).
The phrase "reductions in service" is not defined in the Act
itself, and the only two reported cases we have found addressing
TEUCA benefits offer no guidance on this issue. See Hempfling
v. Unemployment Comp. Bd. of Review, 850 A.2d 773, 777 (Pa.
Commw. Ct. 2004)(employer disputed claimant’s request and
presented credible evidence that her unemployment was due to an
economic decline in technologyrelated industries in general;
claimant’s evidence was "entirely hearsay" and uncorroborated);
Chiccitt v. Unemployment Comp. Bd. of Review, supra (employer
asserted that claimant was separated from employment because
employer could not afford to continue to employ him).
Because the federal statute does not specifically define the
phrase "reductions in service," we must construe it in accordance
with its ordinary or natural meaning. See Smith v. United
States, 508 U.S. 223, 113 S. Ct. 2050, 124 L.Ed.2d 138 (1993);
United States v. Floyd, 81 F.3d 1517, 1523 (10th Cir.1996) ("In
interpreting Congressional intent, a reviewing court must
determine whether the language used in a statute is ambiguous, or
whether it has an ordinary meaning.").
"Reduction" means "the amount by which something is lessened
or diminished." American Heritage Dictionary 1167 (4th ed.
2002). "Service" means "the employment in duties or work for
another," American Heritage Dictionary, supra, at 1267, and
"useful labor that does not produce a tangible commodity."
Webster’s Ninth New Collegiate Dictionary 1076 (1989).
Based upon these definitions, we conclude the phrase
"reductions in service by an air carrier" is not limited to a
decrease in the number of flights offered or provided by such a
carrier, but is broad enough to include reductions in other
services offered or provided by an air carrier.
Under the hearing officer’s and the Panel’s interpretation,
if, for example, a catering company whose sole business is
providing 1000 flight meals per week to an airline, needed only
250 meals per week after September 11, and was forced to lay off
three of its four cooks, the separated cooks would receive
benefits if the airline reduced the number of flights offered.
But they would not receive benefits if the airline maintained its
existing schedule and simply had fewer people on each flight.
Yet, the effect on the employer and the workers would be
identical under either scenario.
While Congress obviously did not intend to provide TEUCA
benefits to all airport related employees, we doubt that it
intended such an illogical result when it provided emergency
economic relief to unemployed workers under the TEUC. See Bird
v. United States, 187 U.S. 118, 23 S.Ct. 42, 47 L.Ed. 100 (1902);
Salomon Forex, Inc. v. Tauber, supra; U.S. v. Blasius, 397 F.2d
203, 207 n.9 (2d Cir. 1968)("There is a presumption against
construing a statute as containing superfluous or meaningless
words or giving it a construction that would render it
ineffective.").
We therefore conclude the hearing officer and the Panel
erred as a matter of law in interpreting the statute so narrowly.
The findings that there was a substantial drop in flight demand
and passenger traffic, and that there was a corresponding
reduction in the demand for employer’s services, did not preclude
a determination that claimant’s separation was "due, in whole or
in part, to reductions in service by an air carrier" and thus a
finding that claimant was eligible for TEUCA
benefits.
Because the hearing officer and the Panel applied an
incorrect legal standard to the facts, the case must be remanded
for further proceedings. See Colo. Div. of Employment & Training
v. Parkview Episcopal Hosp., 725 P.2d 787 (Colo. 1986); ABC
Disposal Servs. v. Fortier, 809 P.2d 1071 (Colo. App.
1990)(courts are not bound by an agency's decision that
misconstrues or misapplies the law).
Given our determination, we need not address claimant’s
remaining arguments.
The Panel’s order is set aside, and the case is remanded
with directions to remand to the hearing officer for further
proceedings and a determination whether claimant’s separation was
due, at least in part, to reductions in service by a certified
air carrier.
JUDGE CASEBOLT concurs.
JUDGE CARPARELLI dissents.
JUDGE CARPARELLI dissenting.
I dissent because the record supports the hearing officer’s
findings of fact and, in my view, the hearing officer and the
Panel applied the correct legal standard to those facts.
Therefore, I would affirm.
I.
As the majority notes, the hearing officer is the sole
arbiter of conflicting evidence, and this court is bound by the
hearing officer’s findings when they are supported by substantial
evidence. Davison v. Indus. Claim Appeals Office, 84 P.3d 1023
(Colo. 2004).
A.
Here, the hearing officer received testimony that travel
agencies and other subscribers access Galileo’s computer system
by way of the internet to reserve hotel rooms, rent cars, and
purchase tickets for air travel, cruises, and tours throughout
the world.
At the first hearing, claimant testified that he wrote
computer programs that enabled the internet reservations to be
manipulated into a form that the airlines’ secure computer
systems could accept. According to claimant, Galileo received a
fee for every seat that was purchased, and when consumers stopped
booking flights on airlines after September 11, Galileo’s revenue
went down. He testified that the problem was "not that
necessarily there were fewer airline flights, there were fewer
people flying," and that was the source of Galileo’s revenue. In
response to a question from the hearing officer, claimant agreed
that fewer seats were being purchased and that it was not
necessarily true that fewer seats were available.
Claimant also explained that, when Galileo offered a new
product or when a new website wanted access to Galileo’s computer
system, his unit wrote supporting computer programs. He
testified that when Galileo’s revenue went down, it was no longer
able to justify continuing development work on its system.
The hearing officer found that, after September 11, there
was a reduction in internet purchases of air travel by consumers
and this caused Galileo’s income to decrease. Consequently,
Galileo decided to use the existing computer programs and no
longer needed to develop the new programs that claimant created
as part of his work.
Based on these findings, the hearing officer concluded that
claimant’s separation was "not due to a reduction in services
provided by the certified air carriers but was caused by a
reduction in business when people stopped booking airline seats
thereby not using [Galileo’s] services." The record supports
these findings of fact.
However, the Panel remanded to give "claimant the
opportunity to present relevant evidence concerning whether the
separation from employment was attributable to a reduction in
services provided by an air carrier."
At the second hearing, claimant’s counsel argued that
claimant’s separation was due to lack of work
directly related to the reduction in flights as well
as the reduction in passengers after the events of
[September 11]. There were . . . fewer questions by
consumers and travel agents because there were fewer
people utilizing the airlines. And whether it’s
because they were afraid to fly or because the
airlines were losing money is irrelevant. There was
less of a need. There was a lack of work . . .
immediately following [September 11].
Claimant testified that Galileo had a problem log and that
when airlines, travel agents, or internal users complained that a
program was not working properly, Galileo created a repair order.
He explained that he worked from the problem log to resolve those
problems. He testified that he spent between 35% and 50% of his
time attending to those problems on a weekly basis. Claimant
testified that, after September 11, his work decreased
significantly. Although he worked on maintenance 23.5 hours
during the week of August 26, he performed only 7.5 hours of
maintenance during the week of October 7.
He testified, "There were fewer flights, fewer people flying
and less use of the system. Consequently, fewer problems were
showing up." Claimant testified that, after September 11, there
were significantly fewer bookings because there were fewer
flights, and many of the flights were only 40% full.
Claimant also testified that he was working on several new
programs that were delayed, three of them indefinitely, and that
Galileo was accomplishing its work with fewer people.
The hearing officer found as follows:
Travel agents were the users of the system that
claimant worked on and the airlines were the
vendors. The travel agents sold tickets from the
airline’s inventory. There is no evidence that
there wasn’t a continuing inventory of plane
tickets for ticket agents to sell. The ticketing
system was used less by the travel agents because
the public was not buying plane tickets. The
claimant stated that because of the lack of demand
by the ticketbuying public, airline flights were
reduced. The claimant stated that flights were at
40% of capacity establishing that seats on
airplanes were going unsold. Some projects of the
employer were delayed or cancelled. The projects
were to benefit the system user, the travel agent,
and corporate clients. The claimant acknowledged
that if the public were flying as much after 911
as [it was] before 911, there would have been no
reduction in flights.
. . . .
The claimant’s testimony establishes that it was
the flying public’s reluctance to fly and the
reduction in the purchase of airline tickets that
caused the reduction in flights. The claimant’s
employment was tied to the purchase of tickets by
the public. Even on reduced schedules, airlines
were flying at only 40% of capacity, leaving 60%
of the seats unsold. There was clearly an
inventory to be sold but the public wasn’t buying.
Based on this conclusion, the claimant’s lack of
work was not due to a reduction in service by a
certified air carrier, but was due to the public’s
reluctance to fly.
C.
Claimant again appealed to the Panel. He argued, among
other things, that (1) the statutory phrase "reductions in
service by a certified air carrier" includes a reduction in
booking and ticketing services; (2) the airlines provide those
services through Galileo; (3) Galileo’s online booking system
suffered significant losses and reductions after September 11;
and (4) his separation was due, at least in part, to Galileo’s
losses and reductions.
However, the record contains no evidence that Galileo
reduced the booking and ticketing services it provides to its
customers, only that the customers decreased their use of the
available services.
The Panel concluded that the hearing officer considered
claimant’s evidence but was not persuaded that claimant’s
separation was due, even partially, to a reduction in service by
an air carrier.
D.
The hearing officer’s findings are logical. Although there
was a reduction in flights, Galileo lost revenue and terminated
claimant, not because there were fewer seats available to sell,
but because fewer seats were being purchased.
Indeed, on this record it would have been illogical to find
that because the airlines and Galileo both lost revenue as a
result of the public’s post September 11 fear of flying,
travelers were buying fewer tickets because the airlines were
providing fewer flights, because Galileo was performing less
maintenance on its existing computer system, or because there was
a reduction in the internet booking and ticketing services that
were available to consumers. In fact, the hearing officer found
that, even after the airlines reduced flights, seats remained
available.
The hearing officer’s findings explicitly resolve the
factual question of whether claimant’s separation was due to
reductions in service provided by a certified air carrier. They
are supported by substantial evidence, and this court is bound by
them. Therefore, I perceive no basis upon which to require the
hearing officer to reconsider that issue.
II.
I also disagree with the majority’s conclusion that the
hearing officer and the Panel erred when they equated a reduction
in service by an air carrier to a reduction in flights.
A.
A fundamental canon of statutory construction is that,
unless otherwise defined, words will be interpreted as taking
their ordinary, contemporary, common meaning. Perrin v. United
States, 444 U.S. 37, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979);
Harbert v. Healthcare Services Group, Inc., 391 F.3d 1140 (10th
Cir. 2004); Fogg v. Macaluso, 892 P.2d 271 (Colo. 1995). We give
deference to the interpretation given by the officer or agency
charged with administering the statute. El Paso County Bd. of
Equalization v. Craddock, 850 P.2d 702 (Colo. 1993).
Although the term "service" can have different meanings in
different contexts, in the context of air travel, the plain,
ordinary, and common meaning of the specific phrase "service by
an air carrier" is "flights." In contrast, when congress has
intended to refer to airline activities other than flights, it
has used the plural term, "services." See, e.g., Arapahoe County
Pub. Airport Auth. v. Centennial Express Airlines, Inc., 956
P.2d. 587, 593 (Colo. 1998).
According to testimony at the hearing and an attachment to
the department’s brief to the hearing officer, the department
received from the U.S. Department of Labor (DOL) a message that
contained additional questions and answers regarding the TEUCA
program. The email message explained that there must be a
connection between an individual’s separation and "a reduction in
service by the air carrier (i.e., less flights, no need for the
individual’s services)." The hearing officer’s and the Panel’s
application of the phrase "service by an air carrier" is
consistent with that of the DOL and the department.
Therefore, based on the plain and ordinary meaning of the
term "airline service," and deferring to the federal and state
agencies charged with applying the statute, I conclude that, in
the context of this statute, "service by an air carrier" means
"flights by an air carrier."
Consequently, I would affirm.