Hampe v. Butler

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

4-7-2004

Hampe v. Butler
Precedential or Non-Precedential: Precedential

Docket No. 03-1438

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 On Appeal from the United States
PRECEDENTIAL District Court
for the Western District of Pennsylvania
(Civil Action No. 01-cv-00622)
UNITED STATES COURT OF
District Judge: The Honorable Robert J.
APPEALS
Cindrich
FOR THE THIRD CIRCUIT
___________
___________

Argued: October 21, 2003
No. 03-1438
___________
Before: ALITO, FUENTES, and
ROSENN, Circuit Judges
(Opinion Filed: April 7, 2004)
RONALD HAMPE; JOSHUA JESSE;
MARK VANWAY; MICHELE ___________
AIKENS; JOHN WHITCOMB,
Individually and on behalf of all
Similarly Situated Individuals; MON Scott A. Bradley, Esq. [ARGUED]
Deputy Attorney General
VALLEY UNEM PLOYED
OFFICE OF ATTORNEY GENERAL
COMMITTEE; INTERNATIONAL 6 th Floor, Manor Complex
UNION OF ELECTRICAL SALARIED 564 Forbes Ave.
MACHINE AND FURNITURE Pittsburgh, PA 15219
WORKERS–COMMUNICATION
Counsel for Appellee Butler
WORKERS OF AMERICA,
Appellants Allen H. Feldman, Esq.
Associate Solicitor for Special Appellate
v. and Supreme Court Litigation
Nathaniel I. Spiller, Esq.
Deputy Associate Solicitor
JOHNNY J. BUTLER, SECRETARY,
Gary K. Stearman, Esq. [ARGUED]
PENNSYLVANIA DEPARTMENT OF
Senior Appellate Attorney
LABOR AND INDUSTRY; ELAINE L. U.S. Department of Labor
CHAO, SECRETARY, U.S. Room 2700
DEPARTMENT OF LABOR 200 Constitution Ave., N.W.
Washington, DC 20210

___________
Bonnie R. Schlueter, Esq. programs through the federal Trade
Office of the U.S. Attorney Adjustment Assistance Program (“TAA”)
700 Grant St. of the Trade Act of 1974. Under the Act,
Suite 400 t h e w o r k e r s w e r e e n ti t le d t o
Pittsburgh, PA 15219 reimbursement for training-related travel
expenses if they had to travel outside their
Counsel for Appellee Chao regular commuting area. However, the
Pennsylvania Department of Labor and
Evalynn B. Welling, Esq. [ARGUED] Industry (“Labor & Industry”), the state
Community Justice Project agency that administers the federal
1705 Allegheny Building program, required the workers to sign
429 Forbes Ave. waivers of the travel expense allowance
Pittsburgh, PA 15219 before they could be approved.
In April 2001, the workers filed suit
John Stember, Esq.
against both Labor & Industry and the
Stember Feinstein Krakoff
United States Department of Labor
1705 Allegheny Building
(“DOL”) seeking, among other things,
429 Forbes Ave.
injunctive relief and a declaration that they
Pittsburgh, PA 15219
were entitled to a retroac tive
reimbursement. The District Court denied
Counsel for Appellants
all relief and dismissed the workers’
_______________________
complaint. 1 We conclude that the workers
are entitled to an order: (1) declaring that
OPINION OF THE COURT
Pennsylvania’s waiver policy violated the
_______________________
Trade Act, and (2) directing the Secretary
of Labor to order the Pennsylvania
Department of Labor & Industry to
redetermine the workers’ travel expense
claims.
FUENTES, Circuit Judge:
I. Facts and Procedural Background

The individual plaintiffs in this case
are industrial workers who reside and 1
worked in western Pennsylvania. Each The District Court also denied a motion by
lost his or her job as a result of foreign Plaintiffs for class certification, based on the
competition or because his or her job had denial of the underlying relief. The class
been moved to another country. As a certification issue has not been appealed as an
result, the workers enrolled in re-training independent issue, so we do not discuss it
here.

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 The Trade Act of 1974, 19 U.S.C. § commuting expenses. Pl. Br. at 11. They
2291-98 (“Act”), provides unemployment further claim that Labor & Industry
compensation, training, job search, adopted this “negotiated travel allowance”
relocation, allowances and other benefits policy as a means of reducing its training
to workers who have lost their jobs as a costs, and that the policy was approved by
result of competition from imports. The DOL. Labor & Industry and DOL,
Act authorizes the Secretary of Labor to however, allege that Labor & Industry and
contract with state employment agencies to Plaintiffs negotiated the $5 per day amount
administer the federal benefits program. based on the mutual recognition that the
Dislocated workers can apply to DOL commuting costs were abnormally high.
t h r o u g h t h e s ta t e a g e n c y f o r
Plaintiffs filed suit in the District
reimbursement of their training costs,
Court in April 2001. Five months later,
including the costs of traveling to their
DOL issued Training and Employment
training centers provided that the centers
Guidance Letter (“TEGL”) 5-01, which
lie outside their normal commuting area.
clarified that states could not negotiate
20 C.F.R. § 617.28(a). Labor & Industry
travel allowances under the Trade Act.
administers the program in Pennsylvania
La bo r & I ndustry a dopte d th is
as an agent of DOL. The named plaintiffs,
clarification, discarded the negotiated
Ronald Hampe, Joshua Jesse, Mark
travel a ll ow ance policy effective
Vanway, Michele Aikens and John
November 15, 2001, and began to pay full
Whitcomb (“Plaintiffs”) are all dislocated
federal mileage to individuals in training
workers under the Act who sought
as of November 15. Labor & Industry did
coverage for their training and travel from
not, however, reimburse any of the
Labor & Industry.2 Plaintiffs, all residing
Plaintiffs for their pre-November 15
in rural areas, were enrolled in training
commuting costs.
facilities located more than 50 miles from
their homes. They allege that before they In their complaint, Plaintiffs
could be approved for a training program, pressed three claims. First, Plaintiffs
the state required anybody commuting demanded retroactive relief from Labor &
more than 50 miles away to sign waivers Industry: namely, reimbursement for pre-
agreeing to accept only $5 per day for November 15 commuting costs above $5
per day. Alternatively, Plaintiffs requested
relief from DOL for the pre-November 15
2
There are two additional named policy on the grounds that DOL endorsed
plaintiffs: Mon Valley Unemployed the negotiated travel allowance policy.3
Committee is an advocacy group
representing unemployed or underemployed
3
individuals, and the International Union of Our dissenting colleague bases his
Electrical Salaried Machine and Furniture opinion on the premise that there is no
Workers–Communication Workers of evidence of any DOL approval of the
America is Plaintiffs’ union. negotiated travel allowance policy. The

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Specifically, Plaintiffs sought a declaration allowances which were withheld from
that “DO L’s policy of approving them before November 15, 2001.” Pl. Br.
negotiated travel allowances prior to at 7. Finally, Plaintiffs sought an
September 2001 violated DOL’s own injunction against the current, post-
regulations and, thus, the dislocated November 15 one-half tuition policy,
workers are entitled to relief against the under which Labor & Industry allegedly
Secretary under the A dministrative denies any training program for which
Procedures [sic] Act 4 for the travel travel costs exceed more than half of
training tuition and fees.
The District Court dismissed all of
record belies this premise, however. Plaintiffs’ claims. First, the District Court
Specifically, Ronald Zilonka, the Labor &
found that Plaintiffs’ claim for
Industry official in charge of Trade Act
reimbursement from Labor & Industry was
allowances, testified that DOL administrator
Ronald Kile approved the negotiated barred by sovereign immunity. In
allowance practice on a state-by-state basis. particular, the District Court rejected
Zilonka Dep. at 37-38 (App. at 70-71). Plaintiffs’ argument that sovereign
Moreover, Zilonka testified that he immunity was inapplicable simply because
continued to send reports on Labor & only federal funds were at issue. The
Industry’s use of the negotiated allowance District Court then dismissed the
policy to federal officials, and that the reimbursement claim against DOL as
federal officials actually asked him for barred by the Act because, according to the
further data on how the policy was working. District Court, redeterminations of Act
Zilonka Dep. at 38-41 (App. at 71). benefits can only be sought in state court.
Although our dissenting colleague is correct
Finally, the District Court concluded that
that the negotiated allowance policy does not
any claims for prospective relief were
seem to have originated from the DOL, the
above testimony makes it clear that the DOL mooted by the November 15 adoption of
knew of and condoned the negotiated travel TEGL 5-01. Plaintiffs timely appealed.
policy, and even encouraged the policy by II. Jurisdiction and Standard of
asking Labor & Industry to keep the DOL
Review
apprised of its progress. Notably, neither the
DOL nor Labor & Industry contests this, nor The District Court had subject
does any record evidence refute the DOL’s matter jurisdiction pursuant to 28 U.S.C. §
clear tacit approval of the negotiated travel 1331. This Court has jurisdiction over the
policy. District Court’s final judgment pursuant to
4 28 U.S.C. § 1291. Our standard of review
Plaintiffs invoke the APA as a
procedural mechanism to challenge DOL’s over the District Court’s grant of summary
actions, see 5. U.S.C. § 702. Plaintiffs’ judgment is plenary. Morton Int’l, Inc. v.
specific substantive challenge is that DOL A.E. Staley Mfg. Co., 343 F.3d 669, 679
has contravened its own regulations and the (3d Cir. 2003).
dictates of the Act.

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 III. Analysis matter jurisdiction . . . to hear statutory or
constitutional challenges to the federal
guidelines themselves.” In other words,
A.The Trade Act Does Not Bar even though the determination of
Relief Against DOL In This Case individuals’ benefits may be confined “to
state administrative and judicial processes,
The District Court’s dismissal of
claims that a program is being operated in
Plaintiffs’ claim against DOL was based
contravention of a federal statute or the
on the grounds that the Trade Act confines
Constitution can nonetheless be brought in
claims for redeterminations of benefits to
federal court.” Id. (internal citations
state courts. In its decision, the District
omitted). Specifically, a federal court can
Court noted that the Act “vested state
hear statutory challenges that will
courts with exclusive jurisdiction over
influence the outcomes of redetermination
claims challenging a state agency’s
proceedings, although it cannot hear direct
application of federal guidelines to the
requests for redetermination. Id. at 284.
benefit claims of individual employees.”
The language from Brock I does not
International Union, United Auto.,
simply allow for suits seeking to invalidate
Aerospace and Agric. Implement Workers
statutes or explicit federal guidelines;
of Am. v. Brock, 477 U.S. 274, 285 (1986)
rather, it explicitly provides for “claims
(hereinafter “Brock I”). Plaintiffs contend,
that a program is being operated in
however, that the federal district court has
contravention of a federal statute.” Id. at
jurisdiction to hear their claims. They
285 (internal citations omitted) (emphasis
argue that their instant suit against DOL is
added). Thus, in this case, Plaintiffs’
not for a redetermination of benefits, but
claim is not barred by the fact that it is not
for an order declaring that DOL
challenging the official statute or
improperly endorsed Labor & Industry’s
regulations. As the Supreme Court noted
negotiated travel allowance policy, which
in Brock I, “[a]s we find [the Act] to pose
had been implemented in violation of
no bar to petitioners’ claims, we see no
federal law.
jurisdictional impediment to this suit in
Plaintiffs are correct. In Brock I, federal court challenging a federal
the Supreme Court noted that nothing in official’s interpretation of a federal statute.
the Act would prevent a suit against DOL In view of the extent to which state
for violation of federal law in federal agencies are bound to adhere to the
court: “While the Act vested state courts Secretary’s directives with respect to the
with exclusive jurisdiction over claims administration and interpretation of the
challenging a state agency’s application of Trade Act, such a direct challenge is not
federal guidelines to the benefit claims of only proper, but appropriate.” Id. at 285-
individual employees, there is no 86 (internal citation omitted).
indication that Congress intended [the Act]
to deprive federal district courts of subject-

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 DOL offers four arguments in an redetermination directive in Brock I was
attempt to distinguish Brock I. First, DOL merely ancillary relief. DOL does not,
contends that in Brock I, the Secretary was however, give any reason as to why it can
still advocating the invalidated policy, only be ancillary, rather than the main
whereas here DOL has declared in TEGL relief granted Plaintiffs here.
5-01 that the pre-November 15 policy
DOL raises two final points in
violated federal law, thereby mooting any
opposition to Plaintiffs’ request for relief.
controversy. We note, however, that
First, it asserts that it cannot order Labor &
Plaintiffs have not yet been reimbursed for
Industry to redetermine benefits because
their pre-November 15 travel costs, and so
Labor & Industry has already resolved that
their entire request for relief has not been
benefits cannot be redetermined under
mooted. A directive from DOL to Labor
state law. This argument is unpersuasive.
& Industry to redetermine benefits to the
As Plaintiffs point out, the question of
extent permitted under state law is a
whether Pennsylvania law forecloses
discrete step beyond merely conceding the
redeterminations has not been litigated in
illegality of the pre-November 15 policy:
state court. Moreover, DOL’s doubt over
doing the latter does not render a request
whether Labor & Industry will conduct
for the former action moot.
redeterminations is not enough to preclude
Second, DOL asserts that Plaintiffs relief. While we do not suggest that the
actually benefitted from the negotiated District Court can order Labor & Industry
travel allowance policy because they were to redetermine benefits in cases in which
able to negotiate fair amounts for travel. redetermination is barred by state law, we
Plaintiffs dispute this assertion, of course, see no obstacle to the entry of an order
and it is, in any case, irrelevant as such a similar to that approved in Brock I.
factual determination must be made by the
In Brock I, the Supreme Court did
agency charged with redetermining
not suggest that the federal courts could
benefits. Third, DOL notes that in Brock
require a redetermination of benefits in
I, no states were joined as parties and so
cases in which “a final state judgment . . .
relief through the Secretary was the only
preclude[d] further consideration of . . .
option. This fact, however, does not
eligibility claims.” 477 U.S. at 284.
distinguish Brock I from the instant case
Instead, the Court held that certain workers
because, in light of sovereign immunity,
who had yet to receive such a judgment
Labor & Industry is just as inaccessible
had “a live interest” in challenging the
here as the state agencies were during
Labor Department guidelines. Id. The
Brock I.5 Fourth, DOL contends that the
Secretary of Labor expressed concern that
state agencies, unless joined as parties,
5
would not comply with a DOL directive to
The conclusion that Labor &
Industry is immune from suit shall be
discussed at greater length in Part C of this opinion.

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redetermine benefits. Brock I, 477 U.S. at cases, and, consistent with state
291-92. The Supreme Court, however, law, to correct any erroneous
opined that it had “little doubt that the eligibility determinations that may
state agencies, which have agreed to have occurred as a result of his
administer [trade readjustment allowance] incorrect interpretation.
benefits as agents of the United States,
would obey the Secretary’s directive to
process anew any [trade readjustment Id. (emphasis added). In the instant case,
allowance] claims wrongfully denied as a therefore, both Brock I and Brock II
result of” the erroneous policy. Id. at 292 (hereafter collectively referred to as
(internal quotations omitted). The “Brock”) would sanction orders to DOL to
Supreme Court stated that state agencies direct Labor & Industry to reprocess
might even be compelled to follow the benefits in accordance with state law.
Secretary’s directive due to their agency Accordingly, while the District Court in
agreement to administer the Trade Act as this case could not hear requests for
agents of the United States. Id. individual eligibility determinations, it did
have jurisdiction to hear a challenge to
On remand from Brock I, the Court
DOL’s approval of Labor & Industry’s
of Appeals for the District of Columbia
negotiated waiver policy. Under the
Circuit further considered the question of
teachings of Brock I, Plaintiffs could
what relief is appropriate for Trade Act
therefore sue for an order declaring that
violations pursuant to invalid DOL
the pre-November 15 policy violated the
policies. See generally International
Trade Act.
Union, United Auto., Aerospace and
Agric. Implement Workers of Am. v. Finally, DOL suggests that even if
Brock, 816 F.2d 761, 768-69 (D.C. Cir. t h e C o u r t d e t er m i n e s th a t a
1987) (hereinafter “Brock II”). The D.C. redetermination directive is appropriate,
Circuit refused to compel redetermination the Court can remand to the District Court
of benefits, but it directed the district court to determine whether that is a proper
to order the Secretary of Labor to declaratory/injunctive remedy. In this
promulgate guidelines embodying a case, however, we see nothing further
correct interpretation of the Act and to required of the District Court: all parties
advise state agencies of this new agree that the pre-November 15 policy
interpretation. Id. at 769. In addition, the violated the Trade Act, and no party has
court of appeals stated: offered a suitable alternative for relief.
Accordingly, it is entirely proper for this
The trial court should also direct
Court to order DOL to direct Labor &
the Secretary to order agency
Industry to redetermine benefits.
officials to take appropriate action
to enforce this correct interpretation B.The One-Half Tuition Policy
of the statute in pending and future Does Not Violate the Trade Act

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 Plaintiffs next allege that Labor & programs cannot be disapproved through
Industry improperly maintains a blanket blanket rules, but only on a case-by-case
“one-half tuition policy” under which basis. H.R. Conf. Rep. No. 100-576, at
Labor & Industry denies any training 700-01 (1988), reprinted in 1988
program for which travel costs exceed U.S.C.C.A.N. 1547, 1733-34. The DOL
more than half of training tuition and fees. regulations implement this case-by-case
In other words, Plaintiffs contend that the approach: “Available at a reasonable cost
one-half tuition policy does not allow for means that training may not be approved at
individualized evaluations of training one provider when, all costs being
programs with high relative travel costs, considered, training substantially similar in
but dismisses such programs by rote. The quality, content and results can be obtained
District Court did not discuss the allegedly from another provider at a lower total cost
blanket nature of the policy, but held that within a similar time frame.” 20 C.F.R. §
the policy conformed to the applicable 617.22(a)(6)(ii). Thus, Labor & Industry
DOL regulation: “Training at facilities cannot institute a blanket denial policy, but
outside the worker’s normal commuting must take each individual’s particular
area that involves transportation or training request into consideration on its
subsistence costs which add substantially own merits. Just as clear, however, is the
to the total costs shall not be approved if regulations’ mandate that training costs,
other appropriate training is available.” including travel costs, be minimized
20 C.F.R. § 617.22(a)(6)(iii)(C) (emphasis without sacrificing training quality,
added). content or results.
Plaintiffs argue that the District Here, there is no evidence that the
Court was in error, and that a blanket one-half tuition policy’s attempt to control
policy rejecting training programs without costs has come at the expense of training
i n d i v id u a l i ze d d e te rm in a t i o n s o f quality, content or results. DOL and Labor
appropriate training options violates & Industry have consistently maintained
federal law. Although we agree with that the one-half tuition policy is not a
Plaintiffs that the Trade Act does not allow blanket policy at all, but is a rule of thumb
for blanket policies, we agree with the that is susceptible to exceptions on a case-
District Court’s conclusion that the one- by-case basis. According to DOL and
half tuition policy comports with the Trade Labor & Industry, the one-half tuition
Act because there is no evidence that the policy is merely a recognition that Labor &
one-half tuition policy is a blanket policy. Industry will normally be able to provide
The Trade Act requires approval of alternate suitable training for applicants
training that “is suitable for the worker and who wish to enroll in programs for which
available at a reasonable cost.” 19 U.S.C. travel costs exceed more than one-half of
§ 2296(a)(1)(F). The statute’s legislative the tuition costs. In the extreme case
history makes it clear that training where that is not possible, DOL and Labor

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& Industry insist that the one-half tuition to a point of half the cost of
policy would not bar reimbursement for transportation—or equal to
the chosen program. t h e c o s t o f
transportation—that every
Plaintiffs reply that Ronald Zilonka,
effort will be made to find
the Labor & Industry official in charge of
o t h e r t r a i n i n g w i t h in
Trade Act allowances, admitted to the
commuting distance.
blanket nature of the policy in his
deposition. A careful reading of the
deposition, however, reveals no such
Id. (emphasis added). Thus, Zilonka
admission. Zilonka explained that,
expressly repudiated opposing counsel’s
normally, other available training could be
statement that the one-half tuition policy is
found for someone whose program
absolute, and emphasized that Labor &
violated the one-half tuition policy.
Industry merely does its best to find
Zilonka Dep. at 90 (App. at 84). Zilonka
alternate training for those whose
was clear, however, that the one-half
programs have high travel costs. 6 In
tuition policy did not act as a total bar to
conclusion, we find that the one-half
acceptance of any programs.
tuition policy legitimately attempts to
Q. This is just a blanket control costs and is in harmony with the
rule, it doesn’t make any individualized character of the Trade Act
difference what the tuition regulations. We accordingly affirm the
of the training is, if the cost District Court’s conclusion in this regard.
of travel is more than that,
C. Plaintiffs’ Request for
you can’t get it.
R eimbursement from
Labor & Industry is
Barred by Sov ereig n
A. Seeing that the
Immunity
transportation cost takes
away from training cost [sic]
of other individuals across
As we previously noted, the District
the C ommonw ealth of
Court dismissed Plaintiffs’ request for
Pennsylvania, each case is
monetary relief from Labor & Industry on
looked at on an individual
the grounds that it was barred by the
basis.

6
But it has been our policy Plaintiffs also claim that Hampe
since 1993/1994 that any was refused his choice of training program
requested training where the and not presented a suitable alternative.
Plaintiffs present no evidence, however, to
cost of transportation rises
support this allegation.

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doctrine of sovereign immunity, which but to protect against the indignity of any
protects states from suit by individuals. kind of suit whatsoever. Federal Maritime
See generally, e.g., Federal Maritime Comm’n, 535 U.S. at 765-66. Thus, no
Comm’n v. South Carolina State Ports matter who pays the reimbursement bill,
Auth., 535 U.S. 743 (2002). Plaintiffs sovereign immunity bars Plaintiffs from
argue that sovereign immunity does not suing Labor & Industry to get that
apply here because the money that would reimbursement.
be used to pay Plaintiffs is coming from
IV. Conclusion
the federal government, and therefore
Plaintiffs are not targeting any of After carefully considering the
Pennsylvania’s money. See Robinson v. arguments discussed above, we conclude
Block, 869 F.2d 202, n.11 (3d Cir. 1989); that the District Court correctly dismissed
Bennett v. White, 865 F.2d 1395, 1408 (3d the claims against Labor & Industry, but
Cir. 1989). The holdings in Robinson and that its dismissal of the claim for
Bennett, however, predated the Supreme injunctive relief against DOL was in error.
Court’s most recent round of decisions on We therefore remand this case to the
sovereign immunity, which leaves no District Court for further proceedings
doubt that sovereign immunity applies consistent with this opinion.
even when the money at stake is from the
federal rather than the state treasury.
Hampe v. Butler
For example, in Regents of the
Univ. of Cal. v. Doe, 519 U.S. 425, 431 No. 03-1438
(1997), the Supreme Court rejected the
ROSENN, Circuit Judge, Concurring and
argument that sovereign immunity would
Dissenting.
not apply “because any award of damages
would be paid by the Department of I concur and join in the majority’s
Energy (“DOE”), and therefore have no opinion except Part III.A (The Trade Act
impact upon the treasury of the State of Does Not Bar Relief Against DOL).
California.” Plaintiffs attempt to However, I cannot agree that the plaintiffs
distinguish Doe on the grounds that are entitled to an injunction against the
California had to pay damages and would United States Department of Labor (DOL).
then be indemnified by the DOE, whereas, The fundament of plaintiffs’ complaint
in the instant case, the money would come against the DOL is that it “authorized
directly from the federal treasury. This and/or acquiesced in Pennsylvania’s
distinction, however, does not help policies of requiring waivers of
Plaintiffs because the Supreme Court has transportation subsidies by the applicants
since made clear that the purpose of under the Trade Adjustment Assistance
sovereign immunity is not merely to (TAA) Program and in setting a travel
protect intrusion into the state’s treasury, subsidy cap.” However, there is no

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evidence of record supporting this general law.” Utah Power & Light Co. v. I.C.C.,
allegation asserted “[u]pon information 747 F.2d 721, 728 (D.C. Cir. 1984)
and belief.” 7 The majority points to none. (quoting Pittsburgh, Cincinnati, Chicago &
“An injunction is an extraordinary St. Louis Railway Co. v. Board of Public
remedy, which should be granted only in Works, 172 U.S. 32, 38 (1898)). Because
limited circumstances.” Novartis the plaintiffs’ right to this drastic remedy
Consumer Health, Inc. v. Johnson & is not supported by any evidence and
Johnson-Merck Consumer unwarranted, I respectfully dissent.
Pharmaceuticals Co., 290 F.3d 578, 586
I.
(3d Cir. 2002) (internal quotation marks
omitted). Not only must the right to an At the outset of my dissenting
injunction be clear, but also it must be opinion, it is important that I highlight my
supported by an adequate factual record. disagreement with the majority opinion. I
Furthermore, where the DOL has agreed do not dispute that there can be a
with the plaintiffs that Pennsylvania’s cognizable claim against the DOL if the
previous travel reimbursement policy was plaintiffs have submitted any sufficient
invalid and the state agency has revised its evidence to show that the DOL’s
policy, the plaintiffs have not shown that regulations, guidelines or regulations
they lack adequate remedy in state contravened the Trade Act. The majority
proceedings for reimbursem ent of acknowledges, however, that the plaintiffs
previously wrongfully reduced or waived are “not challenging the official statute or
travel allowances. “No court of equity regulations.” An examination of the
[should] . . . allow its injunction to issue complaint confirms this conclusion. Apart
[unless the petitioner] has no adequate from the one-sentence assertion asserted
remedy by the ordinary processes of the “[u]pon information and belief,” the
remainder of the complaint directed at the
DOL consists of mere legal conclusions.
7
In paragraph 80 of their The majority quotes a few
complaint, the plaintiffs assert a legal sentences from the Supreme Court’s
conclusion against the DOL: DOL decision in Int’l Union, UAW v. Brock,
violated the case-by-case determination 477 U.S. 274 (1986). Specifically, the
policy of the Trade Act and acted beyond majority quotes the following sentences
its authority under the Trade Act “[i]f by from Brock: “claims that a program is
[its GAL 15-90] it required Pennsylvania being operated in contravention of a
to set a statewide total-cost-of-training federal statute or the Constitution can
limit.” (Emphasis added). Significantly, nonetheless be brought in federal court”;
the plaintiffs qualify their assertion with and federal court has jurisdiction to hear a
the word “if.” Subsequent discovery has suit “challenging a federal official’s
yielded no evidence to support this interpretation of a federal statute.” Id. at
supposition.

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285-86. The majority opinion fails to to Pennsylvania’s specific travel policy;
discuss how the Brock language applies to for them , “n eg otiated ” p olicy is
the plaintiffs’ claims. Instead, it moves synonymous with the state agency’s
simply from the recognition that there can specific policy. The defendants
be a cognizable claim against the DOL to themselves have also used the term
its conclusion that there is a federal claim “negotiated” policy loosely. Even though
here. The plaintiffs have not challenged nomenclature should not be decisive, it can
any federal official’s interpretation of any be misleading. It is important, therefore,
Trade Act provisions in this case. Nor to set the term and the record straight. The
have the plaintiffs challenged any federal only evidence relied on by the plaintiffs in
TAA program. support of their claims against the DOL
and by the majority in support of its
A plain reading of the plaintiffs’
conclusion, is the deposition testimony of
complaint and briefs shows that they are
Ronald Zilonka, director of the state
only challenging Pennsylvania’s previous
agency’s TAA program, which I will
sp e c ific policy, adopted by the
summarize and discuss more fully below.8
Pennsylvania state agency, of limiting
Zilonka’s testimony shows that
travel allowance to $5.00 per day or
some DOL officials generally promoted
requiring some of the plaintiffs to sign
the “negotiated” policy of setting
waivers of travel allowance. They do not
“reasonable” limits to travel cost and cited
challenge the DOL’s general policy that
the Pennsylvania’s “negotiated” policy as
states should set reasonable limit to TAA
an example. However, Zilonka denied
training cost, including travel cost, as
specifically that the federal officials ever
required by federal regulations. Federal
suggested or promoted Pennsylvania’s
regulations require that TAA training be,
specific policy and practice of setting per
among other things, at a reasonable cost.
diem limit or requiring waiver of travel
20 C.F.R. 617.22(a)(6). Furthermore,
reimbursement. He testified specifically
federal regulations provides that approval
that DOL left the states to devise their
of TAA training be at “the lowest
specific travel policy and practice. A fair
reasonable cost.” 20 C.F.R. 617.22(b).
reading of Zilonka’s deposition testimony
See generally DOL’s Training and
shows that the term “negotiated” policy, as
Employment Guidance Letter (TEGL) No.
used in that deposition, is not synonymous
5-01 (September 2001). The plaintiffs
with the specific policy adopted by the
neither challenge the federal regulations
Pennsylvania state agency. Zilonka’s
nor TEGL No. 5-01; they merely challenge
Pennsylvania’s previous specific policy of
capping or requiring waiver of travel
8
allowances. Significantly, the plaintiffs have
offered no deposition testimony of any
The plaintiffs, however, have used
federal officials in charge of the TAA
the term “negotiated” travel policy to refer
program.

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testimony has not shown, and there is no required, the Pennsylvania specific travel
evidence otherwise, that DOL officials policy and practice. In my view, the
ever promoted, suggested, or required majority has merely relied on the
Pennsylvania to adopt its specific policy. plaintiffs’ confusing use of the term
The context of his testimony shows that “negotiated” policy and the Brock
the DOL officials promoted only the language to justify its summary grant of
general federal requirement of setting injunction against the DOL. The majority,
reasonable limits to travel cost. This however, has not addressed the issue of
requirement not only does not violate the whether the DOL has ever promoted or
TAA but also conforms to congressional directed the Pennsylvania state agency to
intent and federal regulations. adopt and implement its specific travel
policy of setting per diem cap and
It must be reiterated that the
requiring waiver. Because the plaintiffs’
plaintiffs are not challenging this general
complaint is merely directed at the specific
federal requirement. They are challenging
state policy, and the record shows that the
only the specific travel policy adopted by
specific policy was devised solely by the
Pennsylvania. Congress did not enact the
state agency, the plaintiffs have failed to
TAA to assist only Pennsylvania workers
show a cognizable claim against the DOL.
who lost jobs as a result of foreign
competition; it was a national program. II.
Thus, it is a logical assumption that
Zilonka testified that in 1995 he and
communications relating to policies,
representatives of four other states and the
guidelines, and their interpretation
District of Columbia had a “conversation”
pertaining to the program would be by
with Russ Kile, a former TAA program
letter or written guideline modification of
administrator at the DOL. Zilonka
the DOL. That was the DOL’s practice.
testified that Kile told the group that
When it issued its TEGL No. 5-01 in
“states had the right to negotiate travel
September 2001, the DOL communicated
costs if that would help lower the cost of
by written letter. The plaintiffs’ complaint
training to enable someone to receive the
refers to another announcement in 1990 by
training they want to.” Zilonka testified
the DOL and it, too, was by general
that he “felt” that Kile had the authority to
administrative letter, GAL 15-90. The
“make that decision.” There is no
plaintiffs, in this case, however, cannot
evidence of Kile’s authority and its extent.
point to any documentary evidence to
Even if he had unlimited authority,
support their position against the DOL.
Zilonka never testified that Kile informed
The deposition testimony of the state agencies that they had unlimited
Zilonka, cited and relied on by the authority to limit travel costs of
plaintiffs and the majority, does not show participants in the TAA program and
either that the DOL ever promoted or obtain waivers. Zilonka further testified
approved, let alone caused, directed or that he decided to change the state travel

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cost policy after discussing with various regarding the state’s policy or practice of
unnamed individuals within the state travel cost reimbursement. Nor was he
agency. He did not recall, however, that aware of an y verbal o r written
he had received any “confirming” communications from the DOL regarding
memorandum from either Kile or the DOL the “negotiated” travel reimbursement
s u b s e q u e n t t o K i l e ’ s al l e g ed policy subsequent to the Philadelphia
“ c o n v e r s a tio n ” w i t h t h e st a te conference. As far as he knew, the
representatives. Zilonka did not send any Philadelphia conference was the only time
“confirming” memorandum to the DOL or that DOL officials discussed travel
Kile. reimbursement, except possibly for some
“informal discussion” with a few federal
Zilonka testified additionally that in
officials abou t the state’s travel
a National Trade Adjustment Assistance
reimbursement policy or practice. He did
Coo rdinator’s conference he ld in
not recall that the federal officials ever
Philadelphia in May 1996, federal officials
told him to discontinue the state policy or
conveyed to all attendees that “negotiated
requested him to submit any report to the
travel policy” was “the best way to lower
DOL regarding the state policy. Any
costs of training” and they cited the
discussion with the federal official was
Pennsylvania policy as an example. The
done “informally.”9
message he obtained from the speeches by
the federal officials, none of whose names Zilonka’s recollection of his
he could recall at the time of the conversation with Kile shows only that he
deposition, was that the states should look encouraged states to bring travel costs to a
at ways to bring travel costs to a “reasonable” or “comfortable” level. Even
“reasonable” or “comfortable level. if Kile were empowered to do so, there is
However, Zilonka denied specifically that nothing in Zilonka’s deposition that proves
the federal officials ever “suggested” the that Kile ever suggested the $5.00 per
practice of setting a $5.00 per diem limit diem limit or the total waiver of travel
on travel allowances. He did not “recall” allowances. Thus, the plaintiffs have
either that they ever “recommended” or neither alleged nor presented any evidence
“suggested” the practice of requiring the proving that the DOL’s guidelines,
“total waiver of travel allowances.” He regulation or policies caused, required, or
denied further that the federal officials directed the Pennsylvania agency to adopt
ever gave him any “parameters” or its specific policy of a per diem cap or
“guidance” as to how the state should
specifically devise its travel cost policy.
They left the matter entirely to the states. 9
Significantly, the plaintiffs have
Zilonka testified that since the offered no deposition testimony of any
Philadelphia conference, federal officials federal officials or officials from other state
agencies who attended the Philadelphia
have never requested any report from him
conference to support their claims.

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waiver of travel allowances. proceedings and where there is neither
allegation nor evidence that it would be
Despite the confusing and
futile for the plaintiff s to seek
undifferentiated use of the term
compensation from the state agency, it is
“negotiated” policy, Zilonka’s testimony
groundless for this court to grant
does not show that the DOL approved or
injunctive relief against the DOL.
encouraged Pennsylvania’s specific policy
and practice. Nonetheless, even if we IV.
assume, arguendo, that the DOL was
For the foregoing reasons, I
aware of, or acquiesced in, Pennsylvania’s
respectfully dissent from the majority’s
specific practice, mere awareness or
grant of injunctive relief. I would affirm
acquiescence, without more, does not
the District Court’s grant of summary
constitute a cognizable claim against the
judgment in favor of the DOL, not on the
DOL under Brock. Neither the plaintiffs
ground of mootness relied on by that court,
nor the majority have cited any authority to
but for the reasons set forth above.
support such a proposition.
Dillinger v. Caterpillar, Inc., 959 F.2d 430,
III. 449 n.2 (3d Cir. 1992) (“[T]he general rule
that a district court decision may be
Finally, the grant of injunctive
affirmed on an alternative ground is well
relief against the DOL is needless because
established.”).
the plaintiffs have not submitted their
claim to the state agency since the DOL
issued TEGL 5-01. The DOL agreed with
the plaintiffs that Pennsylvania’s prior
policy and practice was invalid. The DOL
has issued TEGL 5-01 to clarify the
federal regulations governing travel
payments. The plaintiffs have not
challenged TEGL 5-01. Furthermore, the
plaintiffs have not alleged or shown that
they have submitted requests to the state
agency for reimbursement of travel
allowances the state previously denied
them under its original policy. They have
not alleged that the state agency has denied
any such requests and that the denial is
caused by any federal policy, regulation or
guideline binding on the state. Under
these circumstances, where the plaintiffs
have adequate remedies in state

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