2004 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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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PRECEDENTIAL

 

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

___________

No. 03-1438

___________

RONALD HAMPE; JOSHUA JESSE;

MARK VANWAY; MICHELE

AIKENS; JOHN WHITCOMB,

Individually and on behalf of all

Similarly Situated Individuals; MON

VALLEY UNEMPLOYED

COMMITTEE; INTERNATIONAL

UNION OF ELECTRICAL SALARIED

MACHINE AND FURNITURE

WORKERS–COMMUNICATION

WORKERS OF AMERICA,

Appellants

v.

JOHNNY J. BUTLER, SECRETARY,

PENNSYLVANIA DEPARTMENT OF

LABOR AND INDUSTRY; ELAINE L.

CHAO, SECRETARY, U.S.

DEPARTMENT OF LABOR

___________

On Appeal from the United States

District Court

for the Western District of Pennsylvania

(Civil Action No. 01-cv-00622)

District Judge: The Honorable Robert J.

Cindrich

___________

Argued: October 21, 2003

Before: ALITO, FUENTES, and

ROSENN, Circuit Judges

(Opinion Filed: April 7, 2004)

___________

Scott A. Bradley, Esq. [ARGUED]

Deputy Attorney General

OFFICE OF ATTORNEY GENERAL

6

th Floor, Manor Complex

564 Forbes Ave.

Pittsburgh, PA 15219

Counsel for Appellee Butler

Allen H. Feldman, Esq.

Associate Solicitor for Special Appellate

and Supreme Court Litigation

Nathaniel I. Spiller, Esq.

Deputy Associate Solicitor

Gary K. Stearman, Esq. [ARGUED]

Senior Appellate Attorney

U.S. Department of Labor

Room 2700

200 Constitution Ave., N.W.

Washington, DC 20210
-2-

Bonnie R. Schlueter, Esq.

Office of the U.S. Attorney

700 Grant St.

Suite 400

Pittsburgh, PA 15219

Counsel for Appellee Chao

Evalynn B. Welling, Esq. [ARGUED]

Community Justice Project

1705 Allegheny Building

429 Forbes Ave.

Pittsburgh, PA 15219

John Stember, Esq.

Stember Feinstein Krakoff

1705 Allegheny Building

429 Forbes Ave.

Pittsburgh, PA 15219

Counsel for Appellants

_______________________

OPINION OF THE COURT

_______________________

FUENTES, Circuit Judge:

The individual plaintiffs in this case

are industrial workers who reside and

worked in western Pennsylvania. Each

lost his or her job as a result of foreign

competition or because his or her job had

been moved to another country. As a

result, the workers enrolled in re-training

programs through the federal Trade

Adjustment Assistance Program (“TAA”)

of the Trade Act of 1974. Under the Act,

the workers were entitled to

reimbursement for training-related travel

expenses if they had to travel outside their

regular commuting area. However, the

Pennsylvania Department of Labor and

Industry (“Labor & Industry”), the state

agency that administers the federal

program, required the workers to sign

waivers of the travel expense allowance

before they could be approved. 

In April 2001, the workers filed suit

against both Labor & Industry and the

United States Department of Labor

(“DOL”) seeking, among other things,

injunctive relief and a declaration that they

were entitled to a retroac tive

reimbursement. The District Court denied

all relief and dismissed the workers’

complaint.1 We conclude that the workers

are entitled to an order: (1) declaring that

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.

I. Facts and Procedural Background

1

 The District Court also denied a motion by

Plaintiffs for class certification, based on the

denial of the underlying relief. The class

certification issue has not been appealed as an

independent issue, so we do not discuss it

here.
-3-

The Trade Act of 1974, 19 U.S.C. §

2291-98 (“Act”), provides unemployment

compensation, training, job search,

relocation, allowances and other benefits

to workers who have lost their jobs as a

result of competition from imports. The

Act authorizes the Secretary of Labor to

contract with state employment agencies to

administer the federal benefits program.

Dislocated workers can apply to DOL

through the state agency fo r

reimbursement of their training costs,

including the costs of traveling to their

training centers provided that the centers

lie outside their normal commuting area.

20 C.F.R. § 617.28(a). Labor & Industry

administers the program in Pennsylvania

as an agent of DOL. The named plaintiffs,

Ronald Hampe, Joshua Jesse, Mark

Vanway, Michele Aikens and John

Whitcomb (“Plaintiffs”) are all dislocated

workers under the Act who sought

coverage for their training and travel from

Labor & Industry.2 Plaintiffs, all residing

in rural areas, were enrolled in training

facilities located more than 50 miles from

their homes. They allege that before they

could be approved for a training program,

the state required anybody commuting

more than 50 miles away to sign waivers

agreeing to accept only $5 per day for

commuting expenses. Pl. Br. at 11. They

further claim that Labor & Industry

adopted this “negotiated travel allowance”

policy as a means of reducing its training

costs, and that the policy was approved by

DOL. Labor & Industry and DOL,

however, allege that Labor & Industry and

Plaintiffs negotiated the $5 per day amount

based on the mutual recognition that the

commuting costs were abnormally high.

Plaintiffs filed suit in the District

Court in April 2001. Five months later,

DOL issued Training and Employment

Guidance Letter (“TEGL”) 5-01, which

clarified that states could not negotiate

travel allowances under the Trade Act.

Labor & Industry adopted this

clarification, discarded the negotiated

travel allowance policy effective

November 15, 2001, and began to pay full

federal mileage to individuals in training

as of November 15. Labor & Industry did

not, however, reimburse any of the

Plaintiffs for their pre-November 15

commuting costs.

In their complaint, Plaintiffs

pressed three claims. First, Plaintiffs

demanded retroactive relief from Labor &

Industry: namely, reimbursement for preNovember 15 commuting costs above $5

per day. Alternatively, Plaintiffs requested

relief from DOL for the pre-November 15

policy on the grounds that DOL endorsed

the negotiated travel allowance policy.3

2

 There are two additional named

plaintiffs: Mon Valley Unemployed

Committee is an advocacy group

representing unemployed or underemployed

individuals, and the International Union of

Electrical Salaried Machine and Furniture

Workers–Communication Workers of

America is Plaintiffs’ union.

3

 Our dissenting colleague bases his

opinion on the premise that there is no

evidence of any DOL approval of the

negotiated travel allowance policy. The
-4-

Specifically, Plaintiffs sought a declaration

that “DOL’s policy of approving

negotiated travel allowances prior to

September 2001 violated DOL’s own

regulations and, thus, the dislocated

workers are entitled to relief against the

Secretary under the Administrative

Procedures [sic] Act4 for the travel

allowances which were withheld from

them before November 15, 2001.” Pl. Br.

at 7. Finally, Plaintiffs sought an

injunction against the current, postNovember 15 one-half tuition policy,

under which Labor & Industry allegedly

denies any training program for which

travel costs exceed more than half of

training tuition and fees. 

The District Court dismissed all of

Plaintiffs’ claims. First, the District Court

found that Plaintiffs’ claim for

reimbursement from Labor & Industry was

barred by sovereign immunity. In

particular, the District Court rejected

Plaintiffs’ argument that sovereign

immunity was inapplicable simply because

only federal funds were at issue. The

District Court then dismissed the

reimbursement claim against DOL as

barred by the Act because, according to the

District Court, redeterminations of Act

benefits can only be sought in state court.

Finally, the District Court concluded that

any claims for prospective relief were

mooted by the November 15 adoption of

TEGL 5-01. Plaintiffs timely appealed.

II. Jurisdiction and Standard of

Review

The District Court had subject

matter jurisdiction pursuant to 28 U.S.C. §

1331. This Court has jurisdiction over the

District Court’s final judgment pursuant to

28 U.S.C. § 1291. Our standard of review

over the District Court’s grant of summary

judgment is plenary. Morton Int’l, Inc. v.

A.E. Staley Mfg. Co., 343 F.3d 669, 679

(3d Cir. 2003).

record belies this premise, however. 

Specifically, Ronald Zilonka, the Labor &

Industry official in charge of Trade Act

allowances, testified that DOL administrator

Ronald Kile approved the negotiated

allowance practice on a state-by-state basis. 

Zilonka Dep. at 37-38 (App. at 70-71). 

Moreover, Zilonka testified that he

continued to send reports on Labor &

Industry’s use of the negotiated allowance

policy to federal officials, and that the

federal officials actually asked him for

further data on how the policy was working. 

Zilonka Dep. at 38-41 (App. at 71). 

Although our dissenting colleague is correct

that the negotiated allowance policy does not

seem to have originated from the DOL, the

above testimony makes it clear that the DOL

knew of and condoned the negotiated travel

policy, and even encouraged the policy by

asking Labor & Industry to keep the DOL

apprised of its progress. Notably, neither the

DOL nor Labor & Industry contests this, nor

does any record evidence refute the DOL’s

clear tacit approval of the negotiated travel

policy.

4

 Plaintiffs invoke the APA as a

procedural mechanism to challenge DOL’s

actions, see 5. U.S.C. § 702. Plaintiffs’

specific substantive challenge is that DOL

has contravened its own regulations and the

dictates of the Act.
-5-

III. Analysis

A.The Trade Act Does Not Bar

Relief Against DOL In This Case

The District Court’s dismissal of

Plaintiffs’ claim against DOL was based

on the grounds that the Trade Act confines

claims for redeterminations of benefits to

state courts. In its decision, the District

Court noted that the Act “vested state

courts with exclusive jurisdiction over

claims challenging a state agency’s

application of federal guidelines to the

benefit claims of individual employees.”

International Union, United Auto.,

Aerospace and Agric. Implement Workers

of Am. v. Brock, 477 U.S. 274, 285 (1986)

(hereinafter “Brock I”). Plaintiffs contend,

however, that the federal district court has

jurisdiction to hear their claims. They

argue that their instant suit against DOL is

not for a redetermination of benefits, but

for an order declaring that DOL

improperly endorsed Labor & Industry’s

negotiated travel allowance policy, which

had been implemented in violation of

federal law. 

Plaintiffs are correct. In Brock I,

the Supreme Court noted that nothing in

the Act would prevent a suit against DOL

for violation of federal law in federal

court: “While the Act vested state courts

with exclusive jurisdiction over claims

challenging a state agency’s application of

federal guidelines to the benefit claims of

individual employees, there is no

indication that Congress intended [the Act]

to deprive federal district courts of subjectmatter jurisdiction . . . to hear statutory or

constitutional challenges to the federal

guidelines themselves.” In other words,

even though the determination of

individuals’ benefits may be confined “to

state administrative and judicial processes,

claims that a program is being operated in

contravention of a federal statute or the

Constitution can nonetheless be brought in

federal court.” Id. (internal citations

omitted). Specifically, a federal court can

hear statutory challenges that will

influence the outcomes of redetermination

proceedings, although it cannot hear direct

requests for redetermination. Id. at 284.

The language from Brock I does not

simply allow for suits seeking to invalidate

statutes or explicit federal guidelines;

rather, it explicitly provides for “claims

that a program is being operated in

contravention of a federal statute.” Id. at

285 (internal citations omitted) (emphasis

added). Thus, in this case, Plaintiffs’

claim is not barred by the fact that it is not

challenging the official statute or

regulations. As the Supreme Court noted

in Brock I, “[a]s we find [the Act] to pose

no bar to petitioners’ claims, we see no

jurisdictional impediment to this suit in

federal court challenging a federal

official’s interpretation of a federal statute.

In view of the extent to which state

agencies are bound to adhere to the

Secretary’s directives with respect to the

administration and interpretation of the

Trade Act, such a direct challenge is not

only proper, but appropriate.” Id. at 285-

86 (internal citation omitted).
-6-

DOL offers four arguments in an

attempt to distinguish Brock I. First, DOL

contends that in Brock I, the Secretary was

still advocating the invalidated policy,

whereas here DOL has declared in TEGL

5-01 that the pre-November 15 policy

violated federal law, thereby mooting any

controversy. We note, however, that

Plaintiffs have not yet been reimbursed for

their pre-November 15 travel costs, and so

their entire request for relief has not been

mooted. A directive from DOL to Labor

& Industry to redetermine benefits to the

extent permitted under state law is a

discrete step beyond merely conceding the

illegality of the pre-November 15 policy:

doing the latter does not render a request

for the former action moot.

Second, DOL asserts that Plaintiffs

actually benefitted from the negotiated

travel allowance policy because they were

able to negotiate fair amounts for travel.

Plaintiffs dispute this assertion, of course,

and it is, in any case, irrelevant as such a

factual determination must be made by the

agency charged with redetermining

benefits. Third, DOL notes that in Brock

I, no states were joined as parties and so

relief through the Secretary was the only

option. This fact, however, does not

distinguish Brock I from the instant case

because, in light of sovereign immunity,

Labor & Industry is just as inaccessible

here as the state agencies were during

Brock I.

5

 Fourth, DOL contends that the

redetermination directive in Brock I was

merely ancillary relief. DOL does not,

however, give any reason as to why it can

only be ancillary, rather than the main

relief granted Plaintiffs here.

DOL raises two final points in

opposition to Plaintiffs’ request for relief.

First, it asserts that it cannot order Labor &

Industry to redetermine benefits because

Labor & Industry has already resolved that

benefits cannot be redetermined under

state law. This argument is unpersuasive.

As Plaintiffs point out, the question of

whether Pennsylvania law forecloses

redeterminations has not been litigated in

state court. Moreover, DOL’s doubt over

whether Labor & Industry will conduct

redeterminations is not enough to preclude

relief. While we do not suggest that the

District Court can order Labor & Industry

to redetermine benefits in cases in which

redetermination is barred by state law, we

see no obstacle to the entry of an order

similar to that approved in Brock I.

In Brock I, the Supreme Court did

not suggest that the federal courts could

require a redetermination of benefits in

cases in which “a final state judgment . . .

preclude[d] further consideration of . . .

eligibility claims.” 477 U.S. at 284.

Instead, the Court held that certain workers

who had yet to receive such a judgment

had “a live interest” in challenging the

Labor Department guidelines. Id. The

Secretary of Labor expressed concern that

state agencies, unless joined as parties,

would not comply with a DOL directive to

5

 The conclusion that Labor &

Industry is immune from suit shall be

discussed at greater length in Part C of this opinion.
-7-

redetermine benefits. Brock I, 477 U.S. at

291-92. The Supreme Court, however,

opined that it had “little doubt that the

state agencies, which have agreed to

administer [trade readjustment allowance]

benefits as agents of the United States,

would obey the Secretary’s directive to

process anew any [trade readjustment

allowance] claims wrongfully denied as a

result of” the erroneous policy. Id. at 292

(internal quotations omitted). The

Supreme Court stated that state agencies

might even be compelled to follow the

Secretary’s directive due to their agency

agreement to administer the Trade Act as

agents of the United States. Id. 

On remand from Brock I, the Court

of Appeals for the District of Columbia

Circuit further considered the question of

what relief is appropriate for Trade Act

violations pursuant to invalid DOL

policies. See generally International

Union, United Auto., Aerospace and

Agric. Implement Workers of Am. v.

Brock, 816 F.2d 761, 768-69 (D.C. Cir.

1987) (hereinafter “Brock II”). The D.C.

Circuit refused to compel redetermination

of benefits, but it directed the district court

to order the Secretary of Labor to

promulgate guidelines embodying a

correct interpretation of the Act and to

advise state agencies of this new

interpretation. Id. at 769. In addition, the

court of appeals stated:

The trial court should also direct

the Secretary to order agency

officials to take appropriate action

to enforce this correct interpretation

of the statute in pending and future

cases, and, consistent with state

law, to correct any erroneous

eligibility determinations that may

have occurred as a result of his

incorrect interpretation.

Id. (emphasis added). In the instant case,

therefore, both Brock I and Brock II

(hereafter collectively referred to as

“Brock”) would sanction orders to DOL to

direct Labor & Industry to reprocess

benefits in accordance with state law.

Accordingly, while the District Court in

this case could not hear requests for

individual eligibility determinations, it did

have jurisdiction to hear a challenge to

DOL’s approval of Labor & Industry’s

negotiated waiver policy. Under the

teachings of Brock I, Plaintiffs could

therefore sue for an order declaring that

the pre-November 15 policy violated the

Trade Act.

Finally, DOL suggests that even if

the Court dete rmines that a

redetermination directive is appropriate,

the Court can remand to the District Court

to determine whether that is a proper

declaratory/injunctive remedy. In this

case, however, we see nothing further

required of the District Court: all parties

agree that the pre-November 15 policy

violated the Trade Act, and no party has

offered a suitable alternative for relief.

Accordingly, it is entirely proper for this

Court to order DOL to direct Labor &

Industry to redetermine benefits.

B.The One-Half Tuition Policy

Does Not Violate the Trade Act
-8-

Plaintiffs next allege that Labor &

Industry improperly maintains a blanket

“one-half tuition policy” under which

Labor & Industry denies any training

program for which travel costs exceed

more than half of training tuition and fees.

In other words, Plaintiffs contend that the

one-half tuition policy does not allow for

individualized evaluations of training

programs with high relative travel costs,

but dismisses such programs by rote. The

District Court did not discuss the allegedly

blanket nature of the policy, but held that

the policy conformed to the applicable

DOL regulation: “Training at facilities

outside the worker’s normal commuting

area that involves transportation or

subsistence costs which add substantially

to the total costs shall not be approved if

other appropriate training is available.”

20 C.F.R. § 617.22(a)(6)(iii)(C) (emphasis

added).

Plaintiffs argue that the District

Court was in error, and that a blanket

policy rejecting training programs without

individualized dete rm inations of

appropriate training options violates

federal law. Although we agree with

Plaintiffs that the Trade Act does not allow

for blanket policies, we agree with the

District Court’s conclusion that the onehalf tuition policy comports with the Trade

Act because there is no evidence that the

one-half tuition policy is a blanket policy.

The Trade Act requires approval of

training that “is suitable for the worker and

available at a reasonable cost.” 19 U.S.C.

§ 2296(a)(1)(F). The statute’s legislative

history makes it clear that training

programs cannot be disapproved through

blanket rules, but only on a case-by-case

basis. H.R. Conf. Rep. No. 100-576, at

700-01 (1988), reprinted in 1988

U.S.C.C.A.N. 1547, 1733-34. The DOL

regulations implement this case-by-case

approach: “Available at a reasonable cost

means that training may not be approved at

one provider when, all costs being

considered, training substantially similar in

quality, content and results can be obtained

from another provider at a lower total cost

within a similar time frame.” 20 C.F.R. §

617.22(a)(6)(ii). Thus, Labor & Industry

cannot institute a blanket denial policy, but

must take each individual’s particular

training request into consideration on its

own merits. Just as clear, however, is the

regulations’ mandate that training costs,

including travel costs, be minimized

without sacrificing training quality,

content or results.

Here, there is no evidence that the

one-half tuition policy’s attempt to control

costs has come at the expense of training

quality, content or results. DOL and Labor

& Industry have consistently maintained

that the one-half tuition policy is not a

blanket policy at all, but is a rule of thumb

that is susceptible to exceptions on a caseby-case basis. According to DOL and

Labor & Industry, the one-half tuition

policy is merely a recognition that Labor &

Industry will normally be able to provide

alternate suitable training for applicants

who wish to enroll in programs for which

travel costs exceed more than one-half of

the tuition costs. In the extreme case

where that is not possible, DOL and Labor
-9-

& Industry insist that the one-half tuition

policy would not bar reimbursement for

the chosen program.

Plaintiffs reply thatRonald Zilonka,

the Labor & Industry official in charge of

Trade Act allowances, admitted to the

blanket nature of the policy in his

deposition. A careful reading of the

deposition, however, reveals no such

admission. Zilonka explained that,

normally, other available training could be

found for someone whose program

violated the one-half tuition policy.

Zilonka Dep. at 90 (App. at 84). Zilonka

was clear, however, that the one-half

tuition policy did not act as a total bar to

acceptance of any programs.

Q. This is just a blanket

rule, it doesn’t make any

difference what the tuition

of the training is, if the cost

of travel is more than that,

you can’t get it.

A. Seeing that the

transportation cost takes

away from training cost [sic]

of other individuals across

the Commonwealth of

Pennsylvania, each case is

looked at on an individual

basis.

But it has been our policy

since 1993/1994 that any

requested training where the

cost of transportation rises

to a point of half the cost of

transportation—or equal to

t h e cost o f

transportation—that every

effort will be made to find

other train ing within

commuting distance.

Id. (emphasis added). Thus, Zilonka

expressly repudiated opposing counsel’s

statement that the one-half tuition policy is

absolute, and emphasized that Labor &

Industry merely does its best to find

alternate training for those whose

programs have high travel costs.

6

 In

conclusion, we find that the one-half

tuition policy legitimately attempts to

control costs and is in harmony with the

individualized character of the Trade Act

regulations. We accordingly affirm the

District Court’s conclusion in this regard.

C. Plaintiffs’ Request for

R e imbursement from

Labor & Industry is

Barred by Sovereign

Immunity

As we previously noted, the District

Court dismissed Plaintiffs’ request for

monetary relief from Labor & Industry on

the grounds that it was barred by the

6

 Plaintiffs also claim that Hampe

was refused his choice of training program

and not presented a suitable alternative. 

Plaintiffs present no evidence, however, to

support this allegation.
-10-

doctrine of sovereign immunity, which

protects states from suit by individuals.

See generally, e.g., Federal Maritime

Comm’n v. South Carolina State Ports

Auth., 535 U.S. 743 (2002). Plaintiffs

argue that sovereign immunity does not

apply here because the money that would

be used to pay Plaintiffs is coming from

the federal government, and therefore

Plaintiffs are not targeting any of

Pennsylvania’s money. See Robinson v.

Block, 869 F.2d 202, n.11 (3d Cir. 1989);

Bennett v. White, 865 F.2d 1395, 1408 (3d

Cir. 1989). The holdings in Robinson and

Bennett, however, predated the Supreme

Court’s most recent round of decisions on

sovereign immunity, which leaves no

doubt that sovereign immunity applies

even when the money at stake is from the

federal rather than the state treasury.

For example, in Regents of the

Univ. of Cal. v. Doe, 519 U.S. 425, 431

(1997), the Supreme Court rejected the

argument that sovereign immunity would

not apply “because any award of damages

would be paid by the Department of

Energy (“DOE”), and therefore have no

impact upon the treasury of the State of

California.” Plaintiffs attempt to

distinguish Doe on the grounds that

California had to pay damages and would

then be indemnified by the DOE, whereas,

in the instant case, the money would come

directly from the federal treasury. This

distinction, however, does not help

Plaintiffs because the Supreme Court has

since made clear that the purpose of

sovereign immunity is not merely to

protect intrusion into the state’s treasury,

but to protect against the indignity of any

kind of suit whatsoever. Federal Maritime

Comm’n, 535 U.S. at 765-66. Thus, no

matter who pays the reimbursement bill,

sovereign immunity bars Plaintiffs from

suing Labor & Industry to get that

reimbursement.

IV. Conclusion

After carefully considering the

arguments discussed above, we conclude

that the District Court correctly dismissed

the claims against Labor & Industry, but

that its dismissal of the claim for

injunctive relief against DOL was in error.

We therefore remand this case to the

District Court for further proceedings

consistent with this opinion.

Hampe v. Butler

No. 03-1438

ROSENN, Circuit Judge, Concurring and

Dissenting.

I concur and join in the majority’s

opinion except Part III.A (The Trade Act

Does Not Bar Relief Against DOL).

However, I cannot agree that the plaintiffs

are entitled to an injunction against the

United States Department of Labor (DOL).

The fundament of plaintiffs’ complaint

against the DOL is that it “authorized

and/or acquiesced in Pennsylvania’s

policies of requiring waivers of

transportation subsidies by the applicants

under the Trade Adjustment Assistance

(TAA) Program and in setting a travel

subsidy cap.” However, there is no
-11-

evidence of record supporting this general

allegation asserted “[u]pon information

and belief.”7 The majority points to none.

 “An injunction is an extraordinary

remedy, which should be granted only in

limited circumstances.” Novartis

Consumer Health, Inc. v. Johnson &

Johnso n-M erck Consum e r

Pharmaceuticals Co., 290 F.3d 578, 586

(3d Cir. 2002) (internal quotation marks

omitted). Not only must the right to an

injunction be clear, but also it must be

supported by an adequate factual record.

Furthermore, where the DOL has agreed

with the plaintiffs that Pennsylvania’s

previous travel reimbursement policy was

invalid and the state agency has revised its

policy, the plaintiffs have not shown that

they lack adequate remedy in state

proceedings for reimbursement of

previously wrongfully reduced or waived

travel allowances. “No court of equity

[should] . . . allow its injunction to issue

[unless the petitioner] has no adequate

remedy by the ordinary processes of the

law.” Utah Power & Light Co. v. I.C.C.,

747 F.2d 721, 728 (D.C. Cir. 1984)

(quoting Pittsburgh,Cincinnati, Chicago &

St. Louis Railway Co. v. Board of Public

Works, 172 U.S. 32, 38 (1898)). Because

the plaintiffs’ right to this drastic remedy

is not supported by any evidence and

unwarranted, I respectfully dissent. 

I.

At the outset of my dissenting

opinion, it is important that I highlight my

disagreement with the majority opinion. I

do not dispute that there can be a

cognizable claim against the DOL if the

plaintiffs have submitted any sufficient

evidence to show that the DOL’s

regulations, guidelines or regulations

contravened the Trade Act. The majority

acknowledges, however, that the plaintiffs

are “not challenging the official statute or

regulations.” An examination of the

complaint confirms this conclusion. Apart

from the one-sentence assertion asserted

“[u]pon information and belief,” the

remainder of the complaint directed at the

DOL consists of mere legal conclusions.

The majority quotes a few

sentences from the Supreme Court’s

decision in Int’l Union, UAW v. Brock,

477 U.S. 274 (1986). Specifically, the

majority quotes the following sentences

from Brock: “claims that a program is

being operated in contravention of a

federal statute or the Constitution can

nonetheless be brought in federal court”;

and federal court has jurisdiction to hear a

suit “challenging a federal official’s

interpretation of a federal statute.” Id. at

7

In paragraph 80 of their

complaint, the plaintiffs assert a legal

conclusion against the DOL: DOL

violated the case-by-case determination

policy of the Trade Act and acted beyond

its authority under the Trade Act “[i]f by

[its GAL 15-90] it required Pennsylvania

to set a statewide total-cost-of-training

limit.” (Emphasis added). Significantly,

the plaintiffs qualify their assertion with

the word “if.” Subsequent discovery has

yielded no evidence to support this

supposition.
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285-86. The majority opinion fails to

discuss how the Brock language applies to

the plaintiffs’ claims. Instead, it moves

simply from the recognition that there can

be a cognizable claim against the DOL to

its conclusion that there is a federal claim

here. The plaintiffs have not challenged

any federal official’s interpretation of any

Trade Act provisions in this case. Nor

have the plaintiffs challenged any federal

TAA program.

A plain reading of the plaintiffs’

complaint and briefs shows that they are

only challenging Pennsylvania’s previous

specific policy, adopted by the

Pennsylvania state agency, of limiting

travel allowance to $5.00 per day or

requiring some of the plaintiffs to sign

waivers of travel allowance. They do not

challenge the DOL’s general policy that

states should set reasonable limit to TAA

training cost, including travel cost, as

required by federal regulations. Federal

regulations require that TAA training be,

among other things, at a reasonable cost.

20 C.F.R. 617.22(a)(6). Furthermore,

federal regulations provides that approval

of TAA training be at “the lowest

reasonable cost.” 20 C.F.R. 617.22(b).

See generally DOL’s Training and

Employment Guidance Letter (TEGL) No.

5-01 (September 2001). The plaintiffs

neither challenge the federal regulations

nor TEGL No. 5-01; they merely challenge

Pennsylvania’s previous specific policy of

capping or requiring waiver of travel

allowances.

The plaintiffs, however, have used

the term “negotiated” travel policy to refer

to Pennsylvania’s specific travel policy;

for them, “negotiated” policy is

synonymous with the state agency’s

specific policy. The defendants

themselves have also used the term

“negotiated” policy loosely. Even though

nomenclature should not be decisive, it can

be misleading. It is important, therefore,

to set the term and the record straight. The

only evidence relied on by the plaintiffs in

support of their claims against the DOL

and by the majority in support of its

conclusion, is the deposition testimony of

Ronald Zilonka, director of the state

agency’s TAA program, which I will

summarize and discuss more fully below.8

Zilonka’s testimony shows that

some DOL officials generally promoted

the “negotiated” policy of setting

“reasonable” limits to travel cost and cited

the Pennsylvania’s “negotiated” policy as

an example. However, Zilonka denied

specifically that the federal officials ever

suggested or promoted Pennsylvania’s

specific policy and practice of setting per

diem limit or requiring waiver of travel

reimbursement. He testified specifically

that DOL left the states to devise their

specific travel policy and practice. A fair

reading of Zilonka’s deposition testimony

shows that the term “negotiated” policy, as

used in that deposition, is not synonymous

with the specific policy adopted by the

Pennsylvania state agency. Zilonka’s

8 Significantly, the plaintiffs have

offered no deposition testimony of any

federal officials in charge of the TAA

program.
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testimony has not shown, and there is no

evidence otherwise, that DOL officials

ever promoted, suggested, or required

Pennsylvania to adopt its specific policy.

The context of his testimony shows that

the DOL officials promoted only the

general federal requirement of setting

reasonable limits to travel cost. This

requirement not only does not violate the

TAA but also conforms to congressional

intent and federal regulations.

It must be reiterated that the

plaintiffs are not challenging this general

federal requirement. They are challenging

only the specific travel policy adopted by

Pennsylvania. Congress did not enact the

TAA to assist only Pennsylvania workers

who lost jobs as a result of foreign

competition; it was a national program.

Thus, it is a logical assumption that

communications relating to policies,

guidelines, and their interpretation

pertaining to the program would be by

letter or written guideline modification of

the DOL. That was the DOL’s practice.

When it issued its TEGL No. 5-01 in

September 2001, the DOL communicated

by written letter. The plaintiffs’ complaint

refers to another announcement in 1990 by

the DOL and it, too, was by general

administrative letter, GAL 15-90. The

plaintiffs, in this case, however, cannot

point to any documentary evidence to

support their position against the DOL. 

The deposition testimony of

Zilonka, cited and relied on by the

plaintiffs and the majority, does not show

either that the DOL ever promoted or

approved, let alone caused, directed or

required, the Pennsylvania specific travel

policy and practice. In my view, the

majority has merely relied on the

plaintiffs’ confusing use of the term

“negotiated” policy and the Brock

language to justify its summary grant of

injunction against the DOL. The majority,

however, has not addressed the issue of

whether the DOL has ever promoted or

directed the Pennsylvania state agency to

adopt and implement its specific travel

policy of setting per diem cap and

requiring waiver. Because the plaintiffs’

complaint is merely directed at the specific

state policy, and the record shows that the

specific policy was devised solely by the

state agency, the plaintiffs have failed to

show a cognizable claim against the DOL.

II.

Zilonka testified that in 1995 he and

representatives of four other states and the

District of Columbia had a “conversation”

with Russ Kile, a former TAA program

administrator at the DOL. Zilonka

testified that Kile told the group that

“states had the right to negotiate travel

costs if that would help lower the cost of

training to enable someone to receive the

training they want to.” Zilonka testified

that he “felt” that Kile had the authority to

“make that decision.” There is no

evidence of Kile’s authority and its extent.

Even if he had unlimited authority,

Zilonka never testified that Kile informed

the state agencies that they had unlimited

authority to limit travel costs of

participants in the TAA program and

obtain waivers. Zilonka further testified

that he decided to change the state travel
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cost policy after discussing with various

unnamed individuals within the state

agency. He did not recall, however, that

he had received any “confirming”

memorandum from either Kile or the DOL

subsequent to Kile’s a lleged

“conversa t ion” with the state

representatives. Zilonka did not send any

“confirming” memorandum to the DOL or

Kile. 

Zilonka testified additionally that in

a National Trade Adjustment Assistance

Coordinator’s conference he ld in

Philadelphia in May 1996, federal officials

conveyed to all attendees that “negotiated

travel policy” was “the best way to lower

costs of training” and they cited the

Pennsylvania policy as an example. The

message he obtained from the speeches by

the federal officials, none of whose names

he could recall at the time of the

deposition, was that the states should look

at ways to bring travel costs to a

“reasonable” or “comfortable level.

However, Zilonka denied specifically that

the federal officials ever “suggested” the

practice of setting a $5.00 per diem limit

on travel allowances. He did not “recall”

either that they ever “recommended” or

“suggested” the practice of requiring the

“total waiver of travel allowances.” He

denied further that the federal officials

ever gave him any “parameters” or

“guidance” as to how the state should

specifically devise its travel cost policy.

They left the matter entirely to the states.

Zilonka testified that since the

Philadelphia conference, federal officials

have never requested any report from him

regarding the state’s policy or practice of

travel cost reimbursement. Nor was he

aware of any verbal or written

communications from the DOL regarding

the “negotiated” travel reimbursement

policy subsequent to the Philadelphia

conference. As far as he knew, the

Philadelphia conference was the only time

that DOL officials discussed travel

reimbursement, except possibly for some

“informal discussion” with a few federal

officials about the state’s travel

reimbursement policy or practice. He did

not recall that the federal officials ever

told him to discontinue the state policy or

requested him to submit any report to the

DOL regarding the state policy. Any

discussion with the federal official was

done “informally.”9

Zilonka’s recollection of his

conversation with Kile shows only that he

encouraged states to bring travel costs to a

“reasonable” or “comfortable” level. Even

if Kile were empowered to do so, there is

nothing in Zilonka’s deposition that proves

that Kile ever suggested the $5.00 per

diem limit or the total waiver of travel

allowances. Thus, the plaintiffs have

neither alleged nor presented any evidence

proving that the DOL’s guidelines,

regulation or policies caused, required, or

directed the Pennsylvania agency to adopt

its specific policy of a per diem cap or

9

 Significantly, the plaintiffs have

offered no deposition testimony of any

federal officials or officials from other state

agencies who attended the Philadelphia

conference to support their claims.
-15-

waiver of travel allowances. 

Despite the confusing and

undifferentiated use of the term

“negotiated” policy, Zilonka’s testimony

does not show that the DOL approved or

encouraged Pennsylvania’s specific policy

and practice. Nonetheless, even if we

assume, arguendo, that the DOL was

aware of, or acquiesced in, Pennsylvania’s

specific practice, mere awareness or

acquiescence, without more, does not

constitute a cognizable claim against the

DOL under Brock. Neither the plaintiffs

nor the majority have cited any authority to

support such a proposition.

III.

Finally, the grant of injunctive

relief against the DOL is needless because

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

proceedings and where there is neither

allegation nor evidence that it would be

futile for the plaintiffs to seek

compensation from the state agency, it is

groundless for this court to grant

injunctive relief against the DOL.

IV.

For the foregoing reasons, I

respectfully dissent from the majority’s

grant of injunctive relief. I would affirm

the District Court’s grant of summary

judgment in favor of the DOL, not on the

ground of mootness relied on by that court,

but for the reasons set forth above.

Dillinger v. Caterpillar, Inc., 959 F.2d 430,

449 n.2 (3d Cir. 1992) (“[T]he general rule

that a district court decision may be

affirmed on an alternative ground is well

established.”).
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