or second case on the call the docket today is agenda number eight number one zero nine four six nine williams vs the board of review counsel for the  may please the court brian bear of assistant attorney general on behalf of the board of review and the director of the department of employment security the question before the court today is whether the plaintiff should have been granted trade readjustment allowance cash benefits available under the trade act of two thousand and two when you fail to meet a condition of eligibility by not enrolling in job training or obtaining a waiver from some of the drop the training and roman requirement within the trade act statutory deadline this undisputed that the plaintiff failed to enroll in job training or obtain a waiver within the statutory deadline because she did not receive notice that she might be eligible eligible for such t r a cash benefits from the department of employment security is also undisputed that the i d s did not give her notice because she was not in their system and was and was not on the list given to them by her former employer that she was one of the employees covered by the firm certification under to that the time limits governing enrollment for job training did not give govern her request for a waiver of the enrollment requirement or three that the enrollment requirements that lines were told under either the doctors of equitable tolly or equitable stoppel i'll address each of these arguments and turn section twenty two ninety one eighty five a of the trade act of two thousand and two provided that one of the conditions for to receive cash benefits is that the covered employee and rolled in approved job training and that enrollment period must incur in one of two periods you know the sixteen weeks after separation from employment or the eighth week after the employee's certification by the u s secretary of labor whichever date is late  later this language of section twenty two do you want a five day which is commonly known as the eight sixteen week rule is direct them an emphatic includes no exceptions or limitations for lack of notice of good cause the language of the deadline is directly contrary to the language of the one nine hundred eighty six federal regulation relied on by the appellate court and by the plaintiff to find out her claim for t r a benefits was told this federal regulations on the twenty c f r section six one seven and b the federal regulation expressly applies to the application for for t r a cash benefits it states that the application for t r a must be filed within a reasonable period of time after the certification determination and that a reasonable period of time in such period of time as the individual lacks knowledge of certification the statutory language by contrast place the condition on a role in job training a substantive condition on a role in job training which is different from the appl the application deadline moreover section twenty two nine hundred eighty five eight provides a specific deadline for enrollment for the date of certification the eighth week after the week in which the secretary issues the certification while six se does not contain a specific deadline it refers only to a reasonable period of time after publication of the determination the the section twenty two ninety one a five eight years later it's clear it's unambiguous and more withdrawn it's still in least in theory would apply to an application period because the application period is a separate period and there's not one case you cited to them that i think both parties said to the low case out of pennsylvania where the court distinguish between the application period  roman period now in this particular case it doesn't matter and it may be as a practical fact it had very it has very is limited because the short period of time is provided by congress for a roll and in under the eight sixteen week well it's yes it's it's this quote has to construe the act to determine whether department correctly construed via and the department primarily relied on the department of labor's interpretive documents in which it's required to do in are interpretation has been consistent and longstanding that the each sixteen week will has no equitable exceptions to it it's been that way since they first interpret the act in two thousand and three up through the two thousand and nine amendments which include which included gave authority to apply the law of the state agency to department employees and security file has to follow the department u s department of labor's regulations so i think this court should certainly give considerable deference to the us department of labor's interpretation of the construed because one of the things that the two thousand and nine acted is it created a new provision it was to be applied prospectively only and i think when you if you look at some of the interpretive documents the basis for amending the two thousand and nine at the act in two thousand i was the problems that they had in applying the short enrollment period so there were a number of problems claimants couldn't make decisions on what sort of training was they want to get involved in claimants who wer fact it terminated january first of this year actually under it's been extended through february thirteenth i don't know what the new congress will do with it if the if the two thousand and nine act does expire then the two thousand and two x provisions will go contention that no time limit applies to the application of the waiver of training in a role that is also foreclosed by the statutory language here she relies on section twenty two ninety one c of the trade act but this provision references the twenty two and i can point to specifically i think the strongest areas if you look at a sixty of our appendix tagged with side training employment guidance letter change the re states eligibility for t r a requires that the worker enroll in approved training or receive a waiver of eligibility described in subsection a five a includes the eight six the deadlines the sixteen week deadlines so i would submit that that isn't it indicates that congress intended the waiver provisions to be applied equally to the a five day requirement in addition to that even if you were to if you found this statute ambiguous like the wisconsin court did i think i think disconnecting the waiver of unrolled and requirements would certainly undermine congressional intent which is to move the workers into the job training as quickly as possible for case which came out of them which of the waiver provision was not did not have a deadline in it and then there's the contra case from wisconsin which was i believe an appellate court decision also finding that the  i mean i think just in terms of how you would apply the waiver provision if it wasn't tied to the timing requirements of the roman provision would be extraordinarily different difficult for example one of the reasons you get a waiver is of if there's no of suitable  certainly allow the possibility of gaming the system to seek the cash benefits and sort of circumvent the enrollment requirement again every interpretive document issued by the department of labor has supported this this view of the activity and these those provisions are certainly entitled to deference so it's certainly the there is no basis for under the statute for reading any sort of equitable exception into the statute now the plaintive also brings up two equitable remedies equitable tolling and equitable stoppel she's neither of those apply in this case equitable tolling generally applies only to suits against the government in the same way that applies to suits against private individuals this is again as a condition of of of receiving of benefit the enrollment deadline is not a suit against the government the eight sixteen rules not analogous to statutes of limitations four a one he i think i refer to it as an administrative appeal limitation in fact it's the initial application was the time limit for the initial application for chair a benefits but that doesn't really change the analysis because again section twenty four a one  he like twenty two ninety one a five a distinguishes between application deadlines and conditions in the if you look at twenty four zero one e c a there's a ninety day time period to file your application for those t r a benefits and then the court then the statute sets out various conditions to receive the benefits just like the enrollment provisions in twenty two ninety one a five a are enrollment conditions addition equitable tolling doesn't apply under the eight sixteen week rule isn't phatic mandatory and technical the benefits program provided by the trade act of two thousand two are part of a nationwide program designed to retrain workers quickly and is designed to be applied uniformly across the country as such it does not lend itself to individual cases of equitable tolling there was no phone of government misconduct here with some course of talk about equitable tolling applying when there's only one there's government misconduct there's been no affirmative government company misconduct here the of misrepresentations again it's undisputed that the plaintiff was not on the list provided by the her employer to the department of employee and security in dish an equitable stoppel does not apply to government benefits obviously then the conclusion is she never got a note correct so in essence is your argument that when an employee in this kind of a context this situation they just fall through the cat cracks and this is too bad i'm unfortunately when it comes least to the cash benefit aspect of it yes and she can still and she still is able to you can still enroll in training in training under these provisions but under the law the welfare benefit provision such as this whether it's a condition simply does not told against the state there's no equitable stop or totally against state and the other question i had is you made several references to the department of labor you're always referring to us of i'm sorry yes you're on the u s department in terms of their interpretive whatever the phrases guidebook manual and so forth is there anything that's in the brief because i'm not sure that i saw those the talks about their interpretation of whether or not this regulation six seventeen point to be still exists survives or not the regulation not in there in terms of documents i think because of the in can there's it's directly contradicts the statute the statute has to win in those circumstances whether they've gone back and revisited or not i think it's it's still on the books because at least technically there's a distinction between the application period and the enrollment period and while it's under the two thousand to act it may have little practical effect of any practical effect it still exists and it would certainly exist call a policy argument your call the argument that the secretary of labor made even suspender terminate the agreement with the state for noncompliance if we were to find is the appellate court did hear i'm i don't know exactly what the effect of that would be your honor i guess we'd have to that might be a matter for another litigate a bit of litigation exactly remember the argued b s i remember the arguments in this it was it's an important argument because it was important that this court review this case and that but know if they'll they will they may not terminate the agreement but certainly there could be penalties and that's really still an open question is how this you know would apply we might have to repay the government we might have there might be other there's other particular consequences  but again that's simply that's this you know what the effect would be is is you know is not known agreement so forth should be stricken from them from your brief because it's not in the record and your reply brief did not respond to their argument that even if down the road she were found to be eligible the state there could be some kind of repayment understand this correctly in counsel for the employee can clarify if i'm wrong that even if she were found to be ineligible a later date to these t r a benefits that if there were and if you call it an overpayment whatever but there could be a repayment back right we could have secret pain in fact i think we would probably have to seek repayment back and would that not cure this problem that you refer not you know because if it if if this court reforms depart court's decision than we would have to pay we would if i have to pay we at might have to pay the federal government that they would have to come out of state funding rather than federal funds that would be sort of the minimalist adverse of consequence but they can get the consequences can the legal assistance foundation of metropolitan chicago and i represent miss williams there's no dispute that regina williams was laid off because her car her factory closed due to foreign competition and there's no dispute that mrs williams was a worker eligible for trade adjustment assistance or t r a and there is no dispute that i d s did not advise her about t r a her eligibility for the deadlines for receiving it as it was required to do in two different places in the statute first when she applied for unemployment benefits and second when she was certified eligible by the department of labor if the court decision finding miss williams eligible for t r a benefits should be affirmed first a proper regulation allows extension of the deadlines for good cause there is good cause here i d s did not notify miss williams of the deadlines pursuant to its own statutory and regulatory obligations second even if the regulation does not apply federal principles of equitable tolling and equitable as topple apply in this case again because i d s did not provide the required notice to miss williams in the alternative this s to process miss williams training waiver request because the enrollment in training deadline does not apply to waivers and again finally this court could still decide to dismiss this matter is moot because i d s has paid regina williams all of the benefits to which she's entitled first the appellate court was correct in holding that the regulation allows extension of the deadline for good cause the regulation explains that lack of knowledge of the certification is good cause for a late application the two thousand and two amendments to the trade act do not supersede the good cause of regulation as the board argues the statute plain language does not conflict with the regulation the statute reads payments of terri benefits shall be made if it doesn't say payments shall only be made if the statute reads permissibly not perk lucidly there is nothing in the plain language to support the board's assertion that this language is somehow strict in addition the statute must be read in light of all of its provisions not just in a vacuum this includes the provisions of section twenty two seventy five and section twenty three eleven which require the department of labor and the state agency in this case i d s to inform workers of tiare benefits and the deadlines to apply for them section twenty two ninety one the deadline section is silent as to what happens when the agency violates its obligation to provide notice under section twenty three eleven and the regulation seeks to fill the gap of that silence it is a reasonable her miscible rule and it is entitle to deference it harmonizes the deadline provisions of the act with the notice provisions of  and it also affects rights the purpose of the act which is to assist workers displaced by foreign competition well the appellate court rightly held that the good cause of regulation applied to the if sixteen deadline the board argues that the regulation is not for enrollment in training but just for applications for t r a this is a false distinction there are several types of tiare applications there's applications for money benefits applications for training and applications for waivers those are just three types you have to apply for training to enroll in training so a provision whose purpose is to extend the deadline when a worker doesn't get noticed would have no effect if it didn't apply to the training requirements as well and he worker who had no notice of the deadlines would be just as unable to apply and enroll in training apply for and enroll in training as to apply for other types of benefits so it doesn't make sense to consider that the department of labor even thought of applying for training and enrolling in training as separate events let alone that it would want to extend the deadline in the case of lack of notice for one and not for the other the regulation wants to create and it's an exception for lack of notice and that does not conflict with the statute as mr barrett finally said there is nothing in the department of labor's guidance letters or subsequent regulations to say anything about the good cause regulation not applying to the sixteen deadline it is the department of labor has repeatedly at least three times since the two thousand amendments reviewed the regulations and has never gotten rid of the good cause exception and never issued any any guidance to say that the good cause of regulation does not apply to the sixteen deadline the board also argues that the appellate court's decision will jeopardize tax credits and cause department of labor to cancel its agreement with the state but there is no evidence that the appellate court's decision or any of any decision of this court finding this williams eligible for benefits would bring i d s out of compliance with the agreement  properly promulgated regulation allowing a good cause exception to the eight sixteen deadline applied when i d s did not give the notice it was required to by statute the appellate court did not hold as the board implies that the sixteen deadline is invalid nothing about this decision takes illinois out of compliance with any statute regulation or guidance letter or even the agreement itself the board has cited nothing from the department of labor to the contrary in fact it is the state that was out of compliance with the agreement because it did not comply with its explicit duty under statute regulation and the agreement itself to advise miss williams about  benefits and deadlines the board has assumed harsh consequences for an alleged violation of the agreement while blithely assuming that its own undisputed violation of the agreement will go unpunished because the appellate court's holding in accordance with the law the state should suffer no adverse consequence from the department of labor turning to my second argument miss williams should get benefits because although she missed the sixteen deadline equitable principles because everyone concedes that the two thousand and nine amendments are not retroactive and they have no particular bearing on our argument here that the it's sixteen regulation applies or that a stolen a stop will in tolling apply in the nearest civically then have considered that a change in the law i don't think that's necessarily true there's not necessarily a lot of legislative history that gives us guidance as to what congress was thinking exactly when it and acted the two thousand and nine m clearly there was concern that the deadlines were extremely short and it was difficult for people to enroll in time and to i understand what they were supposed to be doing and when but that doesn't necessarily mean that the two thousand  are a change in the law they congress may have been aware of the controversy over interpret in this deadline that many courts were interpreting that strictly some courts weren't interpreting it strictly and they wanted to make sure that the statute itself said no to no two ways about it we want there to be an exception for good cause but i don't think that that necessarily evinces an intent that previously the good cause of regulation didn't provide that they were just making it explicit to make sure the states were following it department of veterans affairs the united states supreme court held that tolling is presumed in every federal deadline and congress is presume to know this and draft legislation in light of this presumption in this case miss williams meets the standard for tolling of the sixteen deadline because i d s failed to notify her as it was required to do by law and lack of required notice is the quintessential example of when tolling applies now mr barrett has argued that th doesn't apply here because the eight sixteen deadline is not a statute of limitation this is this argument ignores many federal cases that find that tolling applies to any kind of deadline for example in young the united states supreme court found that tolling applied to a three year look back here id against the i r s for the i r s to claim a debt that was not just chargeable in bankruptcy the board also ignores that the court of international trade which is charged with hearing trade act cases has applied tolling to both the act appeal deadlines and its application deadlines and as he pointed out lady kelly and the lady kelly in the truong case the court found that equitable tolling applied to a ninety day period to apply for benefits and despite many opinions from that court the tolling applies to deadlines in the trade act the board relies on two non t r a cases where the u s supreme court found the presumption in favor of equitable tolling is rebutted  discuss each in turn in brokamp tolling did not apply to a tax code because the deadlines were repeated complex and interdependent and affected substantive liabilities this statute doesn't do that the language is permissive is not technical it is not complex there is a forty five day extension for for extenuating circumstances but that does not necessarily exclude tolling equitable tolling because congress charged the state agency with a specific notice requirement we have to assume that the worker confronting the deadlines in the trade act actually knew about them because she would have been notified as congress intended her to  be either way united to scream supreme court recently held in holland the inclusion of an explicit tolling provision does not necessarily preclude equitable tolling and in the other case they cite beggarly the court rejected tolling in light of an unusually generous twelve year statute of limitation in a quiet title action and that's in stark contrast to the deadline in this case which is a matter of weeks the key in all of these cases is to look at as the u s supreme court  at the underlying purpose of the statute and ask whether congress expressed an intent that tolling not apply nothing about the trade act or this deadline or kluges tolling the act purpose is to assist workers who've lost their jobs and to make sure that they do not unfairly bear the burden of liberalized trade policies and the x repeatedly repeatedly emphasizes the importance of notice to the worker allowing tolling of the eight sixteen deadline when there is no notice supports that purpose and it should be applied in this case now the bar the board also argued in its brief that miss williams was not diligent because she heard about terri from a coworker in october but she didn't apply for benefits until december the board has misstated however how diligence is considered when there is a duty to provide notice in truong the court rejected a theory of inquiry notice that the worker has a duty to make inquiries of the agency about their possible eligibility and held that when congress makes a law that an agency has a duty to notify it's made a judgment that the benefit is obscure enough that the worker will remain justifiably ignorant of it until they are actually notified so the board is trying to shift the burden to miss williams to inquire about the deadline when congress explicitly explicitly made it the agency's burden to inform her but it's undisputed that missile applied for t r a the same day that the agency did actually inform her turning to a stop all idea should be equitably a stop from denying miss williams benefits because it failed in its statutory duty to inform her about deadlines when she applied for section twenty three eleven which says that the state agency this is a quote shall advise each worker who applies for unemployment insurance of the benefits under this part and the procedures and deadlines for applying for such benefits this is separate from the related requirement that i d s then advise adversely affected workers to apply for training i d s did neither in its reply s includes a two thousand and five pamphlet in an attempt to show that miss williams was notified about t r a while there is no evidence in the record that miss williams received this pamphlet it does not matter because the pamphlet undisputed is undisputedly insufficient under twenty three eleven it's the pencil it is a supplemental appendix number forty eight and it says trade assistance benefits workers who lose their jobs or who experience reduce work hours and wages as a result of increased i or the shifting of their jobs abroad may qualify for additional benefits under the trade reform act of two thousand and two the worker group must be certified as eligible by the federal department of labor the benefits administered by i d s include income support the health coverage tax credit and alternative trade assistance for older workers individuals should contact the local illinois department of employment security office where they filed their unemployment claim or to find the nearest office call it says nothing about procedures it says nothing about deadlines twenty three eleven says that the state agency shall advise each worker who applies for unemployment insurance of the benefits under this part and the procedures and deadlines for applying for such benefits i d s his own pamphlet which it submitted and invited this court to judicially notice establishes a clear violation of twenty three eleven and section six seventeen point four of the regulations the board also implies that a stop will does not apply against the government in public benefits cases and it cites that site it's cites the strike decline to apply a stop when that case because the government agent there who who failed to advise the claimant about a benefit only violated an internal manual and the court distinguish that from a situation where  an employee violates a regulation that has the force of law here of course i d s his failure to advise miss williams of the sixteen deadline violated both a federal statute and a federal regulation and unlike  care the claimant was not forever foreclose from getting benefits the air here miss williams would be forever foreclosed from getting benefits the board has also expressed concern that allowing a stop on this case and dangers the public fisc and opens up a potential floodgate of litigation and that's not the result of the narrow holding we seek here unlike the cases the board cites miss williams is not seeking benefits to which she would not otherwise be entitled she's not claiming that she should have gotten five hundred dollars a week in t r a because some employee promised her that that's what she would get when in fact she was only entitled to two hundred ninety four dollars a week she only wants what the law in titles forget what the law says that she should get a second we do not seek a holding that the government is a stopped every time an employee fails to inform a claimant about benefits or that as the board put it we expect government employees always to be perfect the lack of information provided to miss williams was not the act of one rogue employee with a vague duty to assist claimants it was the institutional failure of an entire agency to discharge its duties in accordance with the law that is why the stop is appropriate in this case i'm going to rely on what's written in our briefs with regard to the waiver argument and in closing to ensure that the statute is not unjust we respectfully request this honorable court affirm the decision of the appellate court and find miss williams eligible for benefits thank you thank you interpretation of the us department of labor would be in violation would you comment on that certainly on her plate of insist on making this case about fault and it's not a case about fault just to give you some perspective the chronology is important  williams applied for unemployment benefits on april twenty first two thousand and six so the petition for certification of the trade act was not filed told may first two thousand and six so when mr williams initially filed for unemployment benefits there was no certification for them to give notice of and just if you look at twenty section twenty three eleven if you look at section eight to a two states where appropriate but in accordance with subsection f of the section will forward adversely affected workers testing counseling or for job training etc and placement services twenty three section twenty three eleven this is one thousand u s c twenty three eleven f then provides that each state agency subsection eight to advice each worker who applies for employment so under the statute itself it requires notice where appropriate sections six seventeen section six seventeen twenty four requirement by obtaining from the firm or other reliable source the names and addresses of all workers who are partially or totally separated from adversely affected her employment that's exactly what the department did hear it it relied on the list of of employees certified under the act unfortunately the plaintiff was not one of those employees she fell through the cracks as this court has noted so this is not a case about who is more at fault the employer or the department of a point to charity it's about what congress intended in creating these and roman and roman requirements and congress intended and this again is in the the the departments and top of documents the training guidance letter and the manual congress wanted to move people into training and to rome and train job training as quickly as possible that's what they intended in two thousand and two now we can debate the efficacy of that i mean obviously congress in two thousand i decided this wasn't such a good idea because they liberalize the provisions for notice for enroll in it but it doesn't mean that congress didn't fully intend in two thousand to in passing the act two to keep have strict enrollment requirements so when you look at what congress intended in this case clearly they intended these an enviroment requirement to be strictly applied now counsel also suggests that the language is not emphatic but if you look at twenty two nine hundred eighty five you can condition roman conditions to state no later than the latest of the eight sixteen week rule i don't know how much more emphatic you can be and so the basis of the  if there really was really delve into it there are observing a payment made after the ability yes payments were made because again under the regulations were required to make payments when there's an adverse decision ok we can recoup in fact we'd be required to recoup provisions if the case is reverse the in addition to that is because of it requirement that you would argue that it is not moved it's because of that requirement and then also i think that as we point out in  our motion i think there's there is another case pending that's certainly currently stayed right now in the circuit courts involving the same issue so and the question we don't know what congress is going to do with this statute whether that's going to still be whether after february thirteenth that statu may be back in effect so the moon escape argument i think has been resolved i don't think we need to really revisit that at this point everything nothing has changed and in that regard in your pioli you indicated some dark consequences if  allowed to stand and and you are you are going to guess is consistent with what u s department of labor's interpretation of this would be does that is your argument then that we are constrained follow interpret this according to the u s department of labor and we have no discretion to interpret the act we interpret the act differently following the elec court could you not make the argument to the department of labor that you are complying with the act as indicated by the supreme court of illinois that's why i don't want to get into speculation about what will happen in the future your honor but that no i don't it's not our position today that yours that this court is constrained by the department of labor's interpretation this court but the scratches are we give deference to the department labor but your argument is if we follow what you believe that the state would be violating the act and lose the benefits i think however this court rules we would certainly be in a better position to make the case to the department of labor that we have or we are in compliance with  city or the as far as the equitable in general as far as the application of equitable relief in this case there's a reason that equitable is to stop it doesn't apply and i think the same reason can be applied to equitable to particularly in a benefits click case there's thousands of government workers dealing with thousands of people any mistake in any mistaken you know action or inaction by the government can affect the public fisc greatly it certainly is unfortunately given a choice between you know stopping the government or the stopping the individual i think the last clear that the this is the stop does not run against the government in these types of cases for that reason and again this is you know regardless of who's at fault the law is very is clear on this matter that equitable stop an equitable tolling should not apply here thank you thank you council case number one zero nine four six nine regina williams receives the board of review agenda number