                                                                                                                           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Precedential or Non-Precedential: Precedential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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"Hampe v. Butler" (2004). 2004 Decisions. Paper 752.
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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.

                                                 -2-
          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

                                                 -3-
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.

                                                 -4-
               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-

                                                 -5-
        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.

                                                -6-
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

                                                  -7-
        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


                                                         -8-
& 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.

                                                 -9-
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


                                               -10-
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.

                                               -11-
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.

                                               -12-
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

                                               -13-
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.

                                                  -14-
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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