2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

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w . v i l l a no va . e du/thir dc ir c uit_2004/752PRECEDENT IAL

UNIT ED STA TES C OURT OF

APPEALS FO R T HE TH IRD CIR CU IT

___________
No. 03-1438

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RONALD H AMPE; JOSHUA JESSE; MARK V ANWAY ; MICHELE AIKENS; JOHN WHITCOMB, Indiv idually an d on beha lf of a ll Si mi larl y Si tu at ed In di vi dua ls ; MON VALLEY UNEM PLOYED COMMITT EE; INT ERNATI ONAL UNION OF ELECTRICAL SALARIED MACHINE AND FURNIT URE WORKERS– COMMUNICAT ION WORKERS OFAMERI CA, Ap pellan ts

v.

JOHNNY J . B UTLER , S ECRET ARY, PENNS YLVANI A DEPART MENT OF LABOR AND INDUSTRY; ELAINE L. CHAO , SECRETARY, U.S. DEPART MENT OF L ABOR

___________ On Appeal from the United St ates District Cou rt for the We stern D istrict of P enns ylvania (CivilAction No. 01-cv- 00622 ) Distri ct Judge: The H onorable Robert J.

Cindrich

___________ Argued: October 21, 2003

Before: ALITO, FUENT ES, and RO SE NN , Circuit

Judges (Opinion Fi led: Apri l 7, 2004)

___________

Sco tt A. Bra dl ey , E sq . [ ARGUED] Deputy Att orney General OFFI CE OF AT TORNEY GE NERAL 6 th Floor, Manor Complex 564 Forbes Ave. Pitt sburgh, PA 15219
Counsel for

Appellee Butler

Allen H. Fel dman, Esq. Ass ociate Solicito r for S pecia l A ppella te and Supreme Court Litigati on NathanielI. Spi ller , Esq. Deputy Associ ate Soli citor Gary K. St ea rman, Esq . [ ARGUED] Senior Appell ate Att orney U.S. Department

of Labor Room 2700 20 0 C on st

i t uti on Av e. , N. W. Washington, DC 20210-2-

Bonnie R. Schlueter, Esq. Office of the U.S. Attorney 700 Gra nt St. Suite 400 Pitt sburgh, PA 15219
Counsel for

Appellee Chao

Eva lynn B . We ll in g, Esq . [ ARGUED] Community Jus tice Project 1705 AlleghenyBuilding 429 Forbes Ave. Pitt sburgh, PA 15219
John Stember, Esq. Stember Feins tein Krakof f 1705 AlleghenyBuilding 429 Forbes Ave. Pitt sburgh, PA 15219

Co unse l for Ap pellan ts

_______________________ OPINI ON OF THE COURT

_______________________

FU EN TE S, Circuit

Judge :

The indivi dual plainti ffs in this case are i ndustri al workers who reside and worked in western Pennsyl vania. Each losthis or her j ob as a res ult of f oreign competition or because hi s or h er job had been moved to anot he r country. As a result, the workers enrolled in re-tra inin g pr ogr ams through t he federalTrade AdjustmentAssist ance Program (“TAA”) of the Trade Act of

197 4. U nder the A ct, the workers were ent itl ed t o reimburs ement for t r aining- related trave l expenses if the y hadto trave l outsid e their regular commuting area. How ev er, t he Pen nsylvan ia D e partment of Labor and Industry (“La bor & Indu str y”), the state agen c y that a dministers the federal pr ogr am, requ ired th e wo rkers to sign waive rs of th e tr avel expens e all owance bef ore they c oul d be app rov ed.
In April 200 1, the wo rkers filed su it agai nst both Labor & Indust ry and the United St ates Depart ment of Labor (“DOL” ) s eeking, among other things, injunct ive reli ef and a declar ation t hat the y were entit led to a retroac tiv e reimb ursem ent. The Distri ct Court denie d all reli ef and dismi ssed the wor k ers’
com plaint. 1 We conclude that the wo rkers
are entit led to an order: (1) decl aring t hat Pennsyl vania’s waiver poli cy vi olate d the Trade A ct, and (2) directing the S ecretary of Lab or to o rder th e Pen nsylvan ia Departmentof Labor & Indust ry to redete rmine the wor ker s’ travel expense claims.
I. Facts and Procedur al Backgr ound

1 The District Court also denied a motion b y Plaintiffs for cla ss ce rtification, based on the denial of the underl yi ng relief. The class certificationissue has not beenappealed as an independent

issue, so we do not discuss it here.-3-

The Trade Act of

197 4, 19 U.S .C. § 2291-98 (“Act”), provides unemployment compensati on, trai ning, job se arch , relocation, allow ance s and other b enef its to workers who h ave lost their jobs as a result of competition from imports . The Act au th or ize s th e S ec re tar y o f Lab or to contrac t with state empl oymen t agen cies to admini s terth e fe der al ben efi ts pr ogr am. Disl oc ated worke rs ca n a ppl y to DOL throug h the st ate agency fo r reimburs emen t of their tr aining costs, includi ng the costs o f trave ling to th eir trai ning center s provide d thatthe centers lie outsi de thei r normal commuti ng area. 20 C.F.R. § 6 17.28(a). La bor & Industry administers the pro gram in Pe nnsylv a nia
as an agent of DO L. The nam ed plaintiffs, Ro nald Hampe, Joshua J e sse, Ma rk V an w ay, Michele Aikens and J ohn Whitcomb (“Plaintiffs”) are all di slocated work ers und er the A ct who sought coverage for the ir trai ning and trave l from La bo r & In du str y. 2 Plaintiffs, all residi ng in rural are as, w ere en rolle d i n trai ning facil iti es locat ed more than 50 mil es from their homes. They alle ge that before they could be approved for

a tra in in g pr ogr am, the stat e required anybodyc ommuting
more th an 50 m il es awa y t o sign w aivers agreei ng to acc ept only $5 per dayfor commuting expenses. Pl. Br. at 11. They further claim that Labo r & Ind ustry adopted this “negoti ated travel a llowance” policy as a means of reduci ng its trai ning costs, and that t

he polic y was approved by DOL. Labo r & I ndus try and DOL, how ever, alle ge that

Labor & Industry

and Plaintiffs negotiated the $5 per dayamount based on the mutualrecogn i tion t hat the commuting cost s were abnormall y hi gh. Plaintiffs filed s uit i n the Dist rict Cou rt in April 2001. Five months late r , DOL iss ued Traini ng and Employment Guidance Letter (“ TEG L”) 5-01, whic h clari fied tha t states co uld n ot neg otiate travelallowances under the T rade A ct. Labo r & Industr y adopt ed thi s clari fication, discar ded t he negotiated travel al lo wa nce poli cy effe ctiv e November 15, 2001, and began to pay fu ll federalmileage to i ndiv iduals in tr aining
as of N ovem ber 1 5. La bor & Indu stry did not, however, rei mburse an y of the Plaintiffs for their pre- November 15
commu ting costs.
In their c om plaint , Plai ntiff s pressed three c lai ms
. First , Plai ntiff s demanded retr oacti ve reli ef from L abor & In du str y: namely , rei mbursement fo r preNovember 15 commuting cost s above $5 per day. Alternatively , Plainti ffs requ ested reli ef from DOL for the pre-November 15 policy on the grounds th at DOL endorsed the negotiated tr avel al lowance po lic y. 3 2 There are two additional named plaintiffs: Mon Valley Unemploy ed Committee is an advocacy group representing unemploy

ed or underemployed individuals, and the International Union of Electrical Salaried Machine and Furniture Workers–Communication Workers of America is Plaintiffs’ union. 3 Our disse nting colleague bases h

is opinion on the premise that there is no evidence of any

DOL approval of the negotiated travel allowance policy . The-4-

Sp ec ifi ca lly, Plai ntiff

s sought a de clarat io n that “ DO L’s p olicy of a ppro vin g nego ti ated travel a llow ance s prior to Sep t ember 200 1 vi ol at ed DOL’ s o wn regulat ions and, thus, the disl ocated work ers ar e ent itl ed to rel ief agai nst the Secretary under the A dministra tiv e Pr oce dures [sic] Act 4 for the t ravel allowan ce s which were withhel d from

them before N ovem ber 15, 20 01.” Pl. Br. at 7. Final ly , Plai nt i ffs sought an injunct ion a gai nst the c urren t, postNovember 15 on e- ha lf t ui tio n p ol icy, under whic h La bor & In dustry alleg edly denies any training progra m fo r which travelcost s exceed more t han half of train ing tuitio n an d fe es. The Distri ct Court dis missed all of Plaintiffs’ claims. First, the District Court found th at Plaint iffs’ clai m fo r reimburs em entfrom Labor & Industry was barredby sove r ei gn imm unity. In particular, the D istrict Co urt r eje cted Plaintiffs’ argu ment that sover eig n im mu nity w as in ap pl ica bl e s im pl y b ecaus e only federalfunds were at is sue. The Distri ct Court then dismisse d th e reimburs ement cl a im against DOL as barredby the Act because, accordi ng to the Distri ct Court, redeterminati on s o f Act bene fits can o nly be so ugh t in state c ourt. Fi na lly, the Dist

rict Cour t concluded that
an y claims for p rospective relief w ere mooted by the November 15 adopti on of TEGL 5-01. Pl ainti ffs ti mely appealed.
II
. Jurisdic tion and Standard of

Review The Distri ct Court ha d subject matter jurisdictio n pu rsuan t to 28 U. S. C. § 1331. This Court has juri sdiction overthe Distri ct Co urt’s fin al judg men t pursu ant to 28 U.S .C. § 129 1. Our stan dard of review
over the Distri ct Court’ s grant of summ ary judgmentis plen ary. Morton Int’ l, I nc. v. A.E. Stal ey Mfg. Co. , 343 F.3d 669, 679 (3d Cir. 2003 ). record belies this premise, however. Specifically, Ronald Z

ilonka, the Labor & Industry official in charge of Tra

de Act allowances, testified that DOL a dministrator 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 feder

al 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 cor rect that the negotiated allowance policy does not seem to have originated

from the DOL, the above testimony makes it clea r that the DOL knew of and condoned the negotiated tra vel policy, and eve

n 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 neg otiated travel po li cy.

4 Plaintiff

s invoke th

e APA as a procedural mechanism to challenge D OL’s actions, see5. U.S.C. § 7 02. Plaintiffs’ specific substantive challenge is that DOL has contravened its own regulations and the dictatesof the Act.-5- III. An alys is

A.The Tr ade Act Does Not Bar Relief Against DO L In Th is Case The Distri ct Court’ s dismi ssal of Plaintiffs’ clai m against DOL was based
on the grounds that the Trade Act confine s cl ai ms for redeterminations of ben efit s to state cou rts. In it s decis ion, t he District Cou rt noted that the Ac t “veste d state
cour ts with excl usive j urisdi ction ove r cl ai ms challenging a state agency’s applic ation of federalgui del ines t o the bene fit claim s of ind ivid ual e mp loyee s.” Inter nationa l U nio n, Unite d Auto. , Aerospace and Agric. Implem ent W orkers of Am. v. Brock , 477 U.S. 274, 285 (1986) (herei nafter

“ Brock I ”). Plaintif fs contend, how ever, that t

he federal dist

rict court has ju r isdi ction to hear t

heir cl aims. They argue that the ir instant s uit again st DO L is not for a r edete rmin a tion of be nefit s, but for an order de claring that DO L impro perly endorsed Labo r & Industry’s negotiated tr avel al lowance poli cy, which had been i mp le mented in vi olati on of fed eral l aw
. Plaintiffs are correct. In Brock I , the Sup reme Co urt no ted tha t n othing in the A ct wo uld prev ent a su it ag ai ns t DO L for violatio n of federallaw in feder al
cour t: “While the Act

vested state co urts with exclusive jurisdiction o ver c lai ms chall enging a state agency’s applic ation of fede ral guid elines to the benefi t claims of indivi dual em ploy ees, there is n o indication th at Congres s intend ed [th e A ct] to deprive federal district courts of subje ctmatter

juri sdiction .

. . to he ar st atutor y or cons tituti ona l chall enges to t he federal guideli nes themsel ves. ” In other words,
even thoug h the det er minati on o f individuals’ benefit s may be co nfine d “to state administrati ve and judicial processes, cl ai ms that a p rogra m is being oper ated in contrave ntion of a f edera l statute or the Constit ution can n oneth eless b e bro ugh t in federalcourt. ” Id. (interna l cit ati ons omitted). Sp ec ifi ca lly, a federalcourt can he ar sta tu to ry challe nges that w il l influe nce the outc omes of redet ermination proceedings, althoughit cannot hear direct requ ests for redetermination

. Id. at 284. The la ngu age fr om Brock I does not simp ly allow forsuits see king to invalid ate stat utes or ex plic it federal guidelines; rather, it explicitlyprovides f or “ cla ims that a pro gram is being oper ated in contravention of a feder al statu te .” Id. at 285 (interna l citations om itted) (em phas is added ). Thus, in t his case, Plai ntiffs’ claim is not

barred by the factthat i t is not chall enging the offi cial statute or
re gula tions. As the Supreme Court noted in Brock I , “[a]s we find [the Act] to pose
no bar to pet

iti on ers’ clai ms, we see no juri sdictional i m pedim ent to th is suit in federalcourt cha llengi ng a federal offi cia l’s inter

pretat ion of a feder al st atute

. In view of the extent to w hich state agencies are bound to a dhere to t he Secretary’s directives w ith respect to the administ rati on and inte rpret ation of the Trade Ac t, suc h a direc t chal lenge i s not only proper, but appropriate .” Id. at 285- 86 (internal citation om itted).-6-

DOL offers four

arguments i n an atte mpt to disti nguish Brock I

. Fi rs t, DOL contends that i n Brock I , the Secretary was still ad vo ca tin g t he in va lid ate d p ol icy, whereas he re DOL ha s d ec lare d i n TE GL 5-0 1 that the pre-N ovem ber 1 5 po li c y violated federallaw, therebymooting any
co ntr ov er sy. We note, however, that Plaintiffs have not y et been reimburs ed for their pre-November 15 travel costs , and so their entire re ques t for relie f has not been mooted. A d ire ctive from DOL to Labor & Indu str y t o redete rmine benefi ts t o the extent permitted under state l aw is a discre te step beyond mere ly conceding the illegality of

th e p re -No ve m be r 1 5 p ol icy: doing the latter

does not r ender a r equest for the form er actio n m oot. Second, DOL asserts that Pl ainti ffs actua lly benefitted from the negoti ated travelallowance policy

because they were able to neg otiate fa ir a mo unts f or trav el. Plaintiffs dispu te this assert ion, of course, and i t is , in a ny cas e, i rrel evant as s uch a factualdetermi nation must be made by the agency charg ed with redete rminin g benefits. Third, DOL notes t hat in Brock I , no sta tes w ere join ed as partie s and s o reli ef th ro ug h t he Se cr eta ry w as th e only option. Th is fact , however, does not distinguish Brock I from the instant case because, in li g ht of so ve re ig n i m m un ity, Labor & In dustry is ju st as inac cessib le here as the s tate agencies were during Brock I

. 5 Fou rth, D OL conte nds th at t h e re de termination direct ive in Brock I was mere ly ancillary relie f. DO L do es no t, however, give any reaso n as to why it can onl y be ancillary, rath er than the m ain reli ef grant ed Plaint

iffs here. DOL rais es two finalpoint s i n opposition to Plainti ffs’ requestfor reli ef. First, it asserts that i t cannot order Labor& Industry t o r edetermine benefits because Labor & Industryhas already resolved t hat bene fits cannot be r edetermined under state la w. This argument is unper suasive

. As Plaintiffs poi nt out, the question of whether Pen nsylvan ia l aw forecloses redeterm i nations has n ot bee n litigated in state court. Moreover, DOL’s doubt over
w het her Labor & Industry will conduc t redete rminati ons is not enough to prec lude reli ef. While we do not sugge st that t he Distri ct Court can orde r Labo r & Ind ustry to redete rmine benefi ts i n cases i n which redete rminati on is bar

red by state la w, we see no obstacl e to the entryof an order simil ar to t

hat approve d in Brock I

. In Bro ck I , the Su prem e Co urt did not su ggest that the fede ral cou rts cou ld require a rede termin ation o f ben efits in
cas es in wh ich “ a fin al sta te jud gm ent . . . preclude [d] fur ther con side ratio n of

. . . eligibility clai ms.” 477 U.S. at 284. Inste ad, the Court he l d th at certain wo rkers who had yet

to rece ive such a j udgment had “a li ve inte rest ” in chal lenging t he La b or De par tme nt g uid eline s. Id. The Secretary of

Labor expresse d concern that state agencies, un less joined as parties,
wo uld not co mp ly with a DO L dire ctive to 5 The conclusion that Labor & Industry is immune from suit shall be discussed at greater length in Par t C of this opinion.-7-

redete rmine ben efits

. Brock I , 477 U.S. at 291-92. The S uprem e Cou rt , ho wev er, opined that i t had “l ittle doubt t hat the state agencies , which have agreed to administer [trade readjus tmentallowance] bene fits as agents of t he United States,
wou l d obey the Secr etary’s direc tive to pr o cess anew any [t

rade rea djustment al lo wa n ce] claims wrongfully denied as a result of” the erro neo us p olicy. Id. at 292 (int ernal quotati ons omitted). The Supreme Court st ated that st at e agencies might even be co mp elled to follow the Secretary’s di rec tive due to their agency agreementto a dm inis ter t he Trade Act as age nts o f the Un ited S tates

. Id. On remand from Brock I , the Court of Appeals for t

he District of

C olum bia Circu it further con sider ed the quest ion of wha t reli ef is appr opriate for Trade A c t violat ions pur su an t to i nva li d DOL policies. See g enera lly I nt ernati onal Uni on, United Auto. , Aerospace and Agric. Implement Workers of Am. v. Brock , 816 F .2d 761, 76 8-69 (D .C. Cir. 1987) (herei naf

te r “ Brock II ”) . Th e D. C. Circu it refused to compel redetermination of benefit s, but

it di recte d the dis tri ct court to orde r the S ecreta ry of L abor to promulga te gu id eli ne s e m bo dyi ng a correc t int erpreta tion of the A ct and to advise stat e agencies o f this new inter pretat ion. Id. at 769. In additi on, the court of appeals s tate d: The tri al court

should al so di rec t the Secretary to order agency offic ials to take appropri ate action to enforce this cor rect i nterpretation of the statu te in pending and fu ture cases, and , cons istent w ith state la w, to corre ct any err oneous eligibility determinat ions t hat may have occu rred a s a res ult of his incorre ct int

erpret ation

.

Id. ( emphasis added) . In t he inst ant cas e , t herefore, both Brock I and Brock I I (hereafter colle ctive ly referred to as

“ Brock ”) wo uld sa nction orde rs to D OL to direct Lab or & Indu str y t o reprocess ben efits in acc orda nce w ith state la w
. A cc or di ng ly, wh ile the D istrict Co urt in this case coul d not hear reque sts for indivi dual eligibil itydeterminations, it did have jurisdictio n to h ear a c hallen ge to DOL ’s approv al of Lab or & In dustry ’ s negotiated waiver poli cy. Under the teachi ngs of Brock I , Plaintif fs co uld therefore sue foran order decl aring t hat the pr e- No vember 15 poli cy vi olate d the Trad e A ct. Fi na lly, DOL sugge sts that ev en if the Court dete rmines t hat a redete rminati on directiv e is appr opriate, the Court can rema nd to the District Cou rt to d etermi ne whether that is a proper declar atory

/inj unctive re m ed y. In this
case , however, we see nothing furt her
re quiredof the Dist

rict Court: al l par tie s a gree that t

he pre-November 15 pol ic y vi olate d the Trade Act, and no party has offe red a suit able al ternat ive for relie f. A cc or di ng ly, it is entirelyproper fo r this Cou rt to order D OL to dire ct La bor & Industry to redetermine benefits.
B.T he One-Half Tuition Poli cy Does Not Violate the Trade Act-8-

Plainti ffs next allege that L abor & Industry impro perly ma inta in s a blanket “one -halftuition poli cy” unde r which Labor & In dustry de nies an y tr a ining p ro gram for which tr avel cost s exceed
more than hal f of

training t

uition and fees. In otherwords, Pla inti ffs contend t hat the
one- halftuiti o n policy

does not al low for indivi du al ized evaluations of t raini ng pr ogr ams with high relative tra vel c osts, but dismis ses such pr ograms by rote. The Distri ct Cou rt did not discuss the alleg edly blanke t nature of

the poli cy, but held t

hat th e p olicy con form ed to th e app licable DOL regu latio n: “Traini ng at faci lities out s ide the worker’ s normal commuti ng ar ea that i nvolves t ransport ation or subsis tence costs w hich a dd su bsta n tially t o the total costs shall not be a ppro ved i f oth er app ropr iate train ing is a vailab le .” 20 C.F .R. § 617 .2 2( a) (6 )( ii i) (C) (emp hasis added ). Plaintiffs argue that the Dis tri ct Cou rt was in e rr or, and that a blanket policy rejec ting t

raini ng programs without indivi du aliz ed det e r m i nations o f appr opriate trai ning opti ons viol ates f ederal la w. Alt

hou gh w e a gr ee wi t h Plaintiffs that

the Trade Act does not al low for blan ke t poli cies, we agree with the Di stri ct Court’s c onclusi on that t he one

halftuition p olicy com ports with the Tr ade Act becau se t here is no evidence t hat the
one- halftuition poli cy is a bl an ke t p ol icy. The Tr ad e Act requi res appr oval of trai ning that

“is suit able for

the worker and availa ble at a rea sona ble cos t.” 19 U. S. C. § 229 6(a)(1 )(F). T he statu te’s legis la tiv e history makes it c lear t hat tr aining pr ogr ams cannot be d isa pproved thr ough

blan ket rules, but only

on a case-by-case basis. H.R. Conf. Rep. No. 100 -576 , at 700-0 1 (19 88) , reprin ted in 198 8 U. S. C. C. A. N. 154 7, 173 3- 34. The DOL regulat ions implement t

hi s case-by-case approach: “Availabl e at a r ea sona ble cost
means that

trai ning may not

be approved at
one pr ovi der when, al l cost s being considere d, trai ning substant ial ly similar in qu ali ty, content

and resul ts can be obt ained from another

provider at a lower totalcost within a s imil ar time fr ame.” 20 C.F .R. § 617.22(a )(6)(ii). Thus , Labo r & Ind ustry cannotinstitute a blanket denial policy , but
mu st take each i ndividual ’s part icular trai ning request

into cons iderat

io n on its
ow n m erits. Just as clear, how ever, is the regulat io ns’ mandate that traini ng costs, in c luding travelcosts, be minimize d witho ut sacrific ing train ing q uali ty, content or result s. Here, there i s no ev idence that the
one- halftuition policy ’s attempt t o control costs has c om e at t he ex pense of tr aining qu ali ty, content

or re su lt s. DOL and Labor & Indust ry have consis tentl y maint ained that th e o ne -h alf tu itio n p ol icy i s not a blanket policy at all, but

is a rul e of

th umb that is susce ptible to excepti ons on a caseby-case basis. According to DOL and Labor & Industry , the on e-ha lf tui tion policy is mer ely a recogn ition that Labor & Industry w ill n or m all y b e able t o provide altern ate suitable training for ap plican ts who w ish to enro ll in programs for which tra vel costs e xcee d m ore tha n on e-half o f th e tu ition costs . In the extreme case whe re that i s not poss ible, DOL and Labor-9-

& In du str y i ns ist

that t he one-hal f tuit

ion policy would not bar r ei mbur sement for th e ch ose n pr ogr am. Plaintiffs repl y that Ro nald Zilonka , the Lab or & Indu stry officia l in charge of Trade Ac t allowances , admitted to t he b lanket nature of

the poli cy i n hi s depos i tion. A careful re ading of the deposition, however, reve als no suc h ad missi on. Zilonka expl ained tha t , no rm all y, otheravaila ble train ing co uld be found for someone whose progr am violated the one -ha lf t ui tio n p ol icy. Zi lonka De p. at 90 (Ap p. at 84 ). Zil onk a was clear , ho w ever, th at the o ne-h alf tuition policy did not ac t as a tota l bar to acceptance of any programs.

Q. This i s just

a blanket rule, it d oesn’t

make any differe n ce what the tuiti on of the traini ng is, if t

he cost of travel is m ore tha n that, you can ’t get it.

A. Seeing that th e trans portation cost t akes away fr om traini ng cost [s ic]
o f other individua ls acro s s the C ommonw ealt h o f Pennsyl vania, each case is looked at on an in di vidual basis

.

But it has been our poli cy since 1993/1994 that

any request ed trai ning where the cost o f trans portation ri ses to a point of half the cost of trans portation—or equa l to t h e cost o f trans portation—that every effor t will be made to find
o ther train ing withi n commuting dis tance.

Id. (e mphasis added) . Thus, Zi lonka expr essly repudiated o pposing counse l’s statement that

the one-ha lf tui tion policy is absolute, and emp hasi zed that La bor & Industry merelydoes it s best to find alterna te trai ning fortho se whos e pr ogr ams have high travel c osts

. 6 In conclusi on, we find th at the o ne-h alf t ui tion policy leg itimately attem pts to controlcosts and is i n ha rmo ny wit h the indivi dualiz ed charact er of the Trade Act regulations. We acco rding ly affir m th e Distri ct Court’ s conclus ion in t his re gard. C. Plaintiffs’ Request for R e imburse ment fro m Labor & Indus try i s Barred by Sov ereig n Imm unity

As we pr ev iousl y not ed, the District Cou rt dismis sed Plai ntiff s’ reque st for
mon etary reli ef from Labor & Industry on the grou nds that i t was barr ed by t he

6 Plaintiffs also claim that Hampe was refused his choice of training pr ogram and not presented a suitable alternative. Plaintiff s presen t no evide nce, however, to support this allegation.-10-

doctrin e of soverei gn immunity , which protec ts states from suit by individuals. See ge nerall y, e.g. , Fed er al Mari ti me Com m’n v. So uth C arolina State P orts Auth. , 535 U.S. 743 ( 2002). Pl ainti ffs argu e that s overeign i mmunity does not app l y here b ecau se the m oney tha t wo uld be used to payPlaintiffs i s coming fr o m the federalgovernment, and ther ef ore Plai ntif fs are not t argeti ng any of Pennsylvania’s mo ney. See Robinson v
. Block , 869 F.2d 202, n.11 (3d Cir. 1989 ); Ben nett v. W hite , 865 F.2d 1395, 1408 (3d Cir. 1989). The hol dings in Robinson and Ben nett , however , p re dated t he S upr eme Cou rt’s most recent

round of deci sions on soverei gn immunity , which l eaves no dou bt that s overeign i mmunity applie s even w he n the money at st ake is fr om the fe de ra l ra th er th an th e s tat e tr ea su ry. For example, i n Regents of th e Univ. of Cal. v. Doe , 519 U.S. 425, 431 (1997), the Supreme Court rejec ted the argumentthat so ve reign im mu nity wo uld not apply“because anyaward of damages
wo uld be p aid by the Department of Energy (“DOE”), and therefore have no impactupon the treasu ry o f the State of Ca lifor nia.” P laint iffs at tem pt t o dis t inguish Doe on the grounds that Calif ornia had to paydamages and w ould then be indemnifi ed by the DOE , whereas, in the ins tant

case, t he money woul d co me directly fr om th e fed eral trea sury. Th is distincti on, how ever, d oes n ot help Plaintiffs because the Supreme Court has since made clear t

hat the purpose of soverei gn imm unity is no t mere ly to protect intr usion i nto the st ate ’s t re as ur y, but t o prot ect agai nst the indigni ty of any kind of su it wh atso eve r. Federal Mari ti me Com m’n , 535 U.S. at 765- 66. Thu s, no matter wh o pays th e reim burse men t bill, soverei gn immu n ity

bars Plainti ffs from suing Lab or & Indu stry to get tha t reimb ursem ent.

IV
. Conclusion After caref ully consid erin g the argu men ts discuss ed above, we concl ude that the Dist rict Court correctl y di smissed the claim s aga in s t Labor & Industry , but that its dismis sal of t

he clai m for injunct ive relief against

DO L w as in error. We theref

ore remand this cas e to the Distri ct Cou rt f or further procee dings consistent with t

his opi nion.

Hampe v. Butler No. 03-1438 ROSENN , Circu it J ud ge, Concurri ng and Dissenti ng. I concur and j oin in the majority’s opinion except Part II I.A (The T rad e Act Does Not Bar Relief Aga inst DO L). How ever, I cannot a gree that the plainti ffs
are entitled to an injunct ion agai nst the United States D epartm ent of Labor (DOL ). The fundament of pla inti ffs’ compla int against the DOL is that it “authori zed and/oracquiesce d in Pen nsylvania’s po lici es of requiring waivers o f transp o rtation subs idies by the applic ants under t he Trade Adjustment Assist ance (T AA) Program and in se t ting a t ravel
su bsidycap.” How ever, there i s n o-11-

evidence of record supp orting th is general alle gation asserted “[u]po n information and belie f.” 7 The majo rity poin ts to none. “An injunction is an e xtraordinary
re m ed y, wh ich sh ould be gran ted on ly in limi ted circu mstances. ” Nov arti s Consumer Health, Inc. v. Johns on & Johnso n-M erck Consum e r Pha rmac eutica ls Co. , 290 F.3d 578, 586 (3d Cir. 2002) ( internal quotation marks omitted). Notonl y mu st the right to an injunct ion be clear , but a lso it m ust be supporte d by an ade quate fact ual rec ord. Furthe rmor e, where the DOL has agreed with the plai nti ffs that Pen nsylvania’s previous travelreimburs ement policy was invalid and the st ate agency has revise d its po lic y, the plainti ffs have not sh own that th e y lack a dequ ate rem edy in state proceedi ngs for rei mbu rsem ent o f p r eviou sly wrongfullyreduced or wai ved travelallow ances . “No cour t of eq uity [should]

. . . a ll ow i ts i njun ction to issue [unless the pe titioner] h as no adeq uate remedy by the ordi nary processe s of the la w.” Uta h Powe r & Li ght Co. v. I. C.C. , 747 F.2d 72 1, 728 (D .C. Cir. 19 84) (quo ting Pitt sburgh, Cincinn ati, Chicago & St. Lo uis R ailw ay Co . v. B oard of P ublic Works , 172 U.S. 32 , 38 (1898 )). Because the plaint

iffs’ right

to thi s drastic re medy is not supported by any evidence and
unw arra nted , I resp ectf ully dis sen t.

I. At the outset

of my dis senti ng opinion, it is i mportant t hat I hi ghlight

my disagr eement with the maj ority opi nion. I do n ot dis pute that there can be a cogn izable cl ai m agai nst the DOL if

the plaint iffs have submitted any s uffici ent evidence to show that the DO L’s regulations, guideli nes or re gulati ons contrave ned the T rade A ct. The majo rity acknowledges, however, that the pl ainti ffs are “not chall enging the offici al stat ute or regu la ti ons .” An examination of t he complaint

confirm s this conclusion . Apart from the one-sentence asse rt ion asse rted “[u]pon information and bel ief ,” the remainder

of the complaint

directed at the DO L consists of mere legal conclusions. The majorit

y quot es a f ew sentence s fr o m the S uprem e Cou rt’s d ecisi on in In t’ l Un io n, UAW v. Br ock , 477 U.S. 274 (1 986) . Speci fical ly , the majo rity quo tes the f oll o wing sentence s from Brock : “c la ims th at a pro gram is being operate d in contr aventi on of a federalstat

ute or the Consti tuti on can nonetheless be brought i n federalco urt”; and federalcourt has juri sdiction to hear a suit “chall enging a feder al offi cia l’s inter pr etation of a federalstat ute. ” Id. at 7 In pa ragrap h 80 of the ir complaint , the plaint

iffs as sert

a legal
co nc lu si on a ga in st

th e DOL: DOL violated the cas e-by -case determination policy of the Trade Act and acted bey ond its autho rity under th e Tra de A ct “ [i]f by [its G AL 15-9 0] it requ ired P enns ylvania to set a statewide tot al-cos t-of- trai ning lim it.” (E m ph as is a dd ed ). S ig ni fic an tly, the pla intiffs q ualify their a ssertion with the word “if .” Subsequent discovery has yielded n o evid ence to sup port this supposition.-12-

285-86. The majo rity opinion fails to discuss how the Brock langu age a pplies to the plaint

iffs’ clai ms. Instead, i t moves simp ly from the recognit ion that there can be a cognizabl e c laim a gains t the D OL to its conclusion that there is a federalclaim here. The plaintiff s have not chal lenged any federal offici al’s inter pretat ion of any Trade Act provis ions i n t his ca se. Nor have th e p lai nt iff s c ha lle ng ed an y federal TAA pr ogr am. A plain reading of th e plaintiffs’ complaint

and briefs s how s that they are only chall enging Pennsy lvania ’s previ ous speci fic policy , adopt ed by th e Pen nsylvan ia state ag ency, of limi ting travelallowance t o $5.00 per day or requiring some of the plai ntiff s to si gn waive rs of trav el all o wance. They do not chall enge the D OL ’s gener al poli cy t hat stat es shou ld set rea sona ble li m it to TAA trai ning cost, in cluding t ravel c ost, as req uiredby feder al regul ations . Federal regulat ions requir e that

TAA trai ning be, among othe r things , at a reas onab le cost. 20 C.F .R. 6 17.2 2(a )(6). Furthermore, federalregulat

ions provi des that

approval of T AA tr aining be at “the lowest
reaso nable cost. ” 20 C.F.R. 617. 22( b ). See gene rally DOL’s Tr a ining and EmploymentGuidance Lett er (TEGL) No. 5-01 (Septembe r 2001). The pl ainti ffs neithe r c h alle nge the feder al regul ations
nor TEGL No. 5-01; t

hey merelychall enge Pennsylvania’s prev ious sp ecific policy of
c apping or requi ring waiver of trave l allowances. The plaint

iffs, however, have use d the term “negotiate d” trave l policy to refe r to Pennsyl vania’s specifi c trave l poli cy ;

for them , “n eg ot iat ed ” p ol icy i s synonymous with the st ate agenc y’s spec ific p olicy. The defendant s them s elves have also u sed the term “negoti ated” po lic y lo os ely. Even though
n omen clature should not be decisi ve, i t ca n be misleadi ng. It

is i mportant, theref

or e , to set the term and th e reco rd straig ht. The only evidence r elie d on by the plaintiff s in support of

th ei r c la im s a ga in st

th e DOL and by the m ajority in sup port o f its conclusi on, is the deposi tion testimony of R onald Zilonka, director of t he st at e agency’s TA A p rogra m, w hic h I will summarize and discuss mo re fully be lo w. 8 Zilonka’s tes tim on y s hows that
som e DO L of ficials g enera lly pr omoted the “n egotia ted” pol icy of s ettin g “reasonabl e” limits to travelcost and ci ted the Pennsyl vania’ s “negoti ated” pol icyas an exa mp le . However, Zil onka denied spec ifically t ha t the f

ederal offici als ever suggeste d o r promo ted Penn sylvania’s spec ific policy

and prac t ice of se tti ng per di e m limi t or r equiri ng waiver of travel reimb ursem ent. He testified spec ifically that DOL left

the state s to de vise the ir spec ific travel p olicy and practic e. A f air reading of Zilonk a’s deposition testimony sh ows th at t he ter m “n eg ot iat ed ” p ol icy, as used in that

depo sition, is not synonymous with the s pecif ic policy adopted bythe Penn s ylvania state agency. Zilonka ’s

8 Signifi cantl y, the plainti ffs have offered no deposi tion testi mony of any fe de ra l o ff

ic ia ls in ch ar ge of

th e TAA pr ogr am.-13-

testimony has not show n, a nd there i s no evidence otherwis e, that DO L of ficials
ever pr omoted, sugge sted, or requi red Pen nsylvan ia to adopt its spec ific po lic y. The context of his t est imony s hows that the DO L of ficials promoted only the general federal re q uirement of setting
reaso nable lim its to trave l cost. T his requir ement not o nly does not viol ate the TAA but als o conforms to congressiona l intent and federal regulations.
It must be rei t erate d that t he plaint iffs are not c halle nging thi s general federal requireme nt. They are chall enging only the s pecifi c trave l poli cy adopted by Pennsyl vania. Congress did not enact the TAA to assist only Pennsylvania w orkers who lost jobs as a r esult of foreign comp etit ion; it

was a natio nalpr ogr am. Thus, it i s a logi cal as sum p tion t hat
co mm unications relati ng to policies, guidelines, and th eir interpre tatio n p erta ining to the program would be by letter or written guideli ne modificat ion of the DOL . That was the DOL’s practic e. When it i ssued i ts TE GL No . 5-01 in September 2001, the DOL comm unicat ed by writt en letter. The plaintiffs’ complaint refers to anothe r announcementin 1990 by the DOL a nd it, too, was bygeneral administ rati ve letter, GAL 15-90. The plai n tiffs, in thi s case, however, cannot pointto an y do cu m en tar y e vid ence to sup por t thei r po sition aga inst th e D OL

. The deposition tes timonyof Zilonka, cite d and reli ed on by t he plaint iffs and the majorit

y, does not show eithe r tha t the DOL ever promoted or approved, let a lone cause d, directed or r equired, the Pennsy lvania spec ific travel policy and prac ti ce. In myview, the majo rity has merely reli ed o n the plaintiffs’ c onfusing use of the term “negoti ated” po lic y and the Brock language to jus tify

its summary gr ant of injunct ion against

the D O L. Th e m ajo rity, how ever, h as not addressed the issue of whether the DOL has ever promoted o r dir ec ted the P enns ylvania sta te age ncy to ad opt and implement its spec ific travel policy of se ttin g p er diem cap and requiring waiver. Becau se the plainti ffs’ complaint

is mer ely directed atthe spec ific state policy , and the rec ord shows that the spec ific policy

was devised sol el y by the state agency , the plaint iffs hav e f ailed to show a cognizable claim againstthe DOL.

II. Zilon k a testifie d that i n 1995 he and repres entatives of four other s tate s and the Distri ct of Columbia had a “conversation” with Russ Kile , a former TAA program administ rator at the DOL . Zil onka testifie d t hat K ile told the group that “states had the ri ght to negot iate travel costs if that would help l ower the cost of trai ning to enab l e someone to re ceive t he trai ning th eywa nt to .” Zil onka testifie d that he “f elt” that Kil e had the autho rity to “make that de cisi on.” The re i s no evidence of Kile’s authori ty and its exten t. Even if he had unl imit ed authori ty, Zilonkanever te sti fied that Kile informed the state agencies that t hey had unlimi ted autho rity to limittravel costs o f particip ants in th e TAA program and obtain waive rs. Zilonka fu rther t es tifi ed that he decided t o change the s tate tra vel-14-

cost policy

after discuss ing with various unnamed individ uals w ithin th e state ag en cy. He did not rec all, however, that he had recei ved any “ c onfirming ” memorandum from either Kile or t he DOL subsequent to Kile’s a llege d “conversa t i on” with the s tat e repres entatives. Zilonka di d not send any “confirming” memorandum to the DOL or Kil e. Zilonkatestified additi onally th at in
a N ationa l Trade Adjust ment Assist ance Coo rdinator’s conferen ce he ld i n Philad elphia in May 1996, f ederal offic ials conveye d to allatte ndees that “negoti ated travelpolicy ” was “the best way to l ower costs of t ra ining” and theycite d the Pen nsylvan ia policy

as an exampl e. The message he obtai ned from the speeches by the federaloffici als, none of whose names he could recall at the time of t he deposition, was that t

he states should l ook at ways t o bring t

ravel c osts to a “reas onable” or “comfort ab le leve l. How ever, Zilonka deni ed spec ifically that the federal officials ever “su g gested” t he practi ce of setting a $5 .00 per d iem lim it
on travel a llow ance s. He did n ot “reca ll” eithe r tha t theyever “re commended” or “suggest ed” the prac tice of requiring the “tota l w ai ve r o f tra ve l a ll owa nc es .” He deni e d furthe r that the fede ral off icials
ever gave him any “parameter s” or “guidance” as to h ow the state shou ld
s pecif ically devise i ts t ravel c ost pol icy

. They left the matt er entirel y to t he states. Zilonkatestifie d that

si nce the Philad elphia conf erenc e, fed eral o fficials have never reque sted any repo rt from him regar di ng the st ate’s policy or practice of tr avel co st

re im bur se men t. Norwa s h e awar e of an y verbal o r writt e n communicati ons from the DOL regardi ng the “ne gotia te d” t

ra velre imb ur sement policy su b sequ ent to th e Ph iladelp hia confe ren ce. As far as he knew, t he Philad elphia con ferenc e was th e on lyti me that DOL offici als di scussed t ravel reimb ursem ent, exce pt po ssibly f orsom e “i nfo rmal discuss ion” with a few federal of ficials abou t the st ate’s trave l reimburs ement policy

or practic e. He did not recall that the federa l o ffici als ever told him to di sconti nue the st ate pol icyor request ed him to submit any r epor t to the DOL regardi ng the state polic y. Any discuss ion with th e f ederal offici al was don e “in for ma lly.” 9
Zilonka’s r ec ollection of h is conversation with Kile shows onlythathe encouraged states to bring travel c osts to a “reasonabl e” or “com fort able” level . Even if Kile were e mpo were d to d o so, th ere is
no thing in Z ilonka’ s deposit ion that proves that Kile ever s ugg ested t he $5.00 per diem limi t or t

he tota l waiver of t ravel al lo wa nc es. Thus, the plaint iffs have neithe r alle ged nor present ed any e vidence prov ing that the DOL’s guidelines, regulat ion orpolici es caused, required, or directed the Pennsy lvania agency to adopt it s spec ific policy

of a per di em cap or

9 Sig nificantly, the plaintiffs have offered no deposition testimony of any federa l officia ls or officials fr

om other s tate agencies who a

ttended t he Philade

lphia conference

to support

their cla ims.-15-

wa iver of tr ave l allo wa nce s. De spite the confusi ng an d undiffere n tiat ed use o f the t er m “negoti ated” policy, Zilonka’s testimony does not sh ow th at t he DOL approved or encouraged Pennsylvania’s spec ific pol i cy and pr actic e. Non ethe le ss , e ve n i f we assume, arguendo , tha t the DOL was
aware of, oracquiesce d in, Penn sylvania’s spec ific practice, mere awareness o r acquiesc ence, with o ut more, does not
cons titute a cog nizab le cla im against the DOL under Brock . Neit h er the pl ainti ffs
nor the majo rity have c ited an y authority to support s uch a proposi tion.

III. Fi na lly, the grant

of i njuncti ve reli ef again st the D OL is needless because the plaintiffs h ave n ot sub mitted their claim to th e s tat e a ge nc y si nc e the DOL issuedTEGL 5-0 1. The DO L ag reed w ith the plai nti ffs that Pe n nsyl vania’s prior policy and practice wa s inv alid. The DOL has issued TEGL 5-01 to cl ar ify the federa l regulat

ions governing trave l pa y ments. The plaintiffs have not chall enged TEGL 5-01. Furthermore, the plaint iffs have not al leged or sho wn that theyhave submitted request s to the sta te agen cy for rei mbursement of t ravel allowances the stat e previous ly denied them und er its origi nal poli cy. They have not allege d that th e state agency has denied any such requ ests an d that th e den ial i s caused by anyfederal policy , regul ation or guid elin e b inding on t he state. Under these circumst ances, where the plainti ffs have ade qua te re me dies i n stat e proceedi ngs and where ther e is nei ther alle gationnor evidenc e that it would be futi le for the plaintiff s to see k compensati on f

r om the state agen cy, it is grou n dless for thi s court to grant inj unctive rel ie f aga ins t the DOL.

IV.
Fo r the f ore goi ng r eas ons , I respe ctfully dissen t from the m ajo ri ty’s g rantof injunc tive relie f. I would a ffir m the District Cou rt’s grant of sum mary judgmentin favor of the DOL , not on t he ground of m ootn ess relied on b y that cou rt, but for th e reasons s et fort h above. Dilli nger v. Cater

pill ar, I nc. , 959 F.2d 430, 449 n.2 (3d Cir . 1992) (“[T]he gener al rule that a distri ct court decisi on m ay be aff irme d on an alte rnative grou nd is w ell established.”).-16-