Ronald Hampe v. Johnny J. Butler, Secretary, Pennsylvania Department of Labor

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-1438
___________
RONALD HAMPE; JOSHUA JESSE;
MARK VANWAY; MICHELE
AIKENS; JOHN WHITCOMB,
Individually and on behalf of all
Similarly Situated Individuals; MON
VALLEY UNEM PLOYED
COMMITTEE; INTERNATIONAL
UNION OF ELECTRICAL SALARIED
MACHINE AND FURNITURE
WORKERS–COMMUNICATION
WORKERS OF AMERICA,
Appellants
v.
JOHNNY J. BUTLER, SECRETARY,
PENNSYLVANIA DEPARTMENT OF
LABOR AND INDUSTRY; ELAINE L.
CHAO, SECRETARY, U.S.
DEPARTMENT OF LABOR
___________
On Appeal from the United States
District Court
for the Western District of Pennsylvania
(Civil Action No. 01-cv-00622)
District Judge: The Honorable Robert J.
Cindrich
___________
Argued: October 21, 2003
Before: ALITO, FUENTES, and
ROSENN, Circuit Judges
(Opinion Filed: April 7, 2004)
___________
Scott A. Bradley, Esq. [ARGUED]
Deputy Attorney General
OFFICE OF ATTORNEY GENERAL
6th Floor, Manor Complex
564 Forbes Ave.
Pittsburgh, PA 15219
Counsel for Appellee Butler
Allen H. Feldman, Esq.
Associate Solicitor for Special Appellate
and Supreme Court Litigation
Nathaniel I. Spiller, Esq.
Deputy Associate Solicitor
Gary K. Stearman, Esq. [ARGUED]
Senior Appellate Attorney
U.S. Department of Labor
Room 2700
200 Constitution Ave., N.W.
Washington, DC 20210

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Bonnie R. Schlueter, Esq.
Office of the U.S. Attorney
700 Grant St.
Suite 400
Pittsburgh, PA 15219
Counsel for Appellee Chao
Evalynn B. Welling, Esq. [ARGUED]
Community Justice Project
1705 Allegheny Building
429 Forbes Ave.
Pittsburgh, PA 15219
John Stember, Esq.
Stember Feinstein Krakoff
1705 Allegheny Building
429 Forbes Ave.
Pittsburgh, PA 15219
Counsel for Appellants
_______________________
OPINION OF THE COURT
_______________________
FUENTES, Circuit Judge:
The individual plaintiffs in this case
are industrial workers who reside and
worked in western Pennsylvania. Each
lost his or her job as a result of foreign
competition or because his or her job had
been moved to another country. As a
result, the workers enrolled in re-training
programs through the federal Trade
Adjustment Assistance Program (“TAA”)
of the Trade Act of 1974. Under the Act,
t h e w o r k e r s w e r e e n ti t le d t o
reimbursement for training-related travel
expenses if they had to travel outside their
regular commuting area. However, the
Pennsylvania Department of Labor and
Industry (“Labor & Industry”), the state
agency that administers the federal
program, required the workers to sign
waivers of the travel expense allowance
before they could be approved.
In April 2001, the workers filed suit
against both Labor & Industry and the
United States Department of Labor
(“DOL”) seeking, among other things,
injunctive relief and a declaration that they
w e r e e n t i t l e d t o a r e t r o a c t i v e
reimbursement. The District Court denied
all relief and dismissed the workers’
complaint.1 We conclude that the workers
are entitled to an order: (1) declaring that
Pennsylvania’s waiver policy violated the
Trade Act, and (2) directing the Secretary
of Labor to order the Pennsylvania
Department of Labor & Industry to
redetermine the workers’ travel expense
claims.
I. Facts and Procedural Background
1
The District Court also denied a motion by
Plaintiffs for class certification, based on the
denial of the underlying relief. The class
certification issue has not been appealed as an
independent issue, so we do not discuss it
here.

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

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Specifically, Plaintiffs sought a declaration
that “DO L’s policy of approving
negotiated travel allowances prior to
September 2001 violated DOL’s own
regulations and, thus, the dislocated
workers are entitled to relief against the
Secretary under the A dministrative
Procedures [sic] Act4 for the travel
allowances which were withheld from
them before November 15, 2001.” Pl. Br.
at 7. Finally, Plaintiffs sought an
injunction against the current, post-
November 15 one-half tuition policy,
under which Labor & Industry allegedly
denies any training program for which
travel costs exceed more than half of
training tuition and fees.
The District Court dismissed all of
Plaintiffs’ claims. First, the District Court
found that Plaintiffs’ claim for
reimbursement from Labor & Industry was
barred by sovereign immunity. In
particular, the District Court rejected
Plaintiffs’ argument that sovereign
immunity was inapplicable simply because
only federal funds were at issue. The
District Court then dismissed the
reimbursement claim against DOL as
barred by the Act because, according to the
District Court, redeterminations of Act
benefits can only be sought in state court.
Finally, the District Court concluded that
any claims for prospective relief were
mooted by the November 15 adoption of
TEGL 5-01. Plaintiffs timely appealed.
II. Jurisdiction and Standard of
Review
The District Court had subject
matter jurisdiction pursuant to 28 U.S.C. §
1331. This Court has jurisdiction over the
District Court’s final judgment pursuant to
28 U.S.C. § 1291. Our standard of review
over the District Court’s grant of summary
judgment is plenary. Morton Int’l, Inc. v.
A.E. Staley Mfg. Co., 343 F.3d 669, 679
(3d Cir. 2003).
record belies this premise, however.
Specifically, Ronald Zilonka, the Labor &
Industry official in charge of Trade Act
allowances, testified that DOL administrator
Ronald Kile approved the negotiated
allowance practice on a state-by-state basis.
Zilonka Dep. at 37-38 (App. at 70-71).
Moreover, Zilonka testified that he
continued to send reports on Labor &
Industry’s use of the negotiated allowance
policy to federal officials, and that the
federal officials actually asked him for
further data on how the policy was working.
Zilonka Dep. at 38-41 (App. at 71).
Although our dissenting colleague is correct
that the negotiated allowance policy does not
seem to have originated from the DOL, the
above testimony makes it clear that the DOL
knew of and condoned the negotiated travel
policy, and even encouraged the policy by
asking Labor & Industry to keep the DOL
apprised of its progress. Notably, neither the
DOL nor Labor & Industry contests this, nor
does any record evidence refute the DOL’s
clear tacit approval of the negotiated travel
policy.
4 Plaintiffs invoke the APA as a
procedural mechanism to challenge DOL’s
actions, see 5. U.S.C. § 702. Plaintiffs’
specific substantive challenge is that DOL
has contravened its own regulations and the
dictates of the Act.

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

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DOL offers four arguments in an
attempt to distinguish Brock I. First, DOL
contends that in Brock I, the Secretary was
still advocating the invalidated policy,
whereas here DOL has declared in TEGL
5-01 that the pre-November 15 policy
violated federal law, thereby mooting any
controversy. We note, however, that
Plaintiffs have not yet been reimbursed for
their pre-November 15 travel costs, and so
their entire request for relief has not been
mooted. A directive from DOL to Labor
& Industry to redetermine benefits to the
extent permitted under state law is a
discrete step beyond merely conceding the
illegality of the pre-November 15 policy:
doing the latter does not render a request
for the former action moot.
Second, DOL asserts that Plaintiffs
actually benefitted from the negotiated
travel allowance policy because they were
able to negotiate fair amounts for travel.
Plaintiffs dispute this assertion, of course,
and it is, in any case, irrelevant as such a
factual determination must be made by the
agency charged with redetermining
benefits. Third, DOL notes that in Brock
I, no states were joined as parties and so
relief through the Secretary was the only
option. This fact, however, does not
distinguish Brock I from the instant case
because, in light of sovereign immunity,
Labor & Industry is just as inaccessible
here as the state agencies were during
Brock I.5 Fourth, DOL contends that the
redetermination directive in Brock I was
merely ancillary relief. DOL does not,
however, give any reason as to why it can
only be ancillary, rather than the main
relief granted Plaintiffs here.
DOL raises two final points in
opposition to Plaintiffs’ request for relief.
First, it asserts that it cannot order Labor &
Industry to redetermine benefits because
Labor & Industry has already resolved that
benefits cannot be redetermined under
state law. This argument is unpersuasive.
As Plaintiffs point out, the question of
whether Pennsylvania law forecloses
redeterminations has not been litigated in
state court. Moreover, DOL’s doubt over
whether Labor & Industry will conduct
redeterminations is not enough to preclude
relief. While we do not suggest that the
District Court can order Labor & Industry
to redetermine benefits in cases in which
redetermination is barred by state law, we
see no obstacle to the entry of an order
similar to that approved in Brock I.
In Brock I, the Supreme Court did
not suggest that the federal courts could
require a redetermination of benefits in
cases in which “a final state judgment . . .
preclude[d] further consideration of . . .
eligibility claims.” 477 U.S. at 284.
Instead, the Court held that certain workers
who had yet to receive such a judgment
had “a live interest” in challenging the
Labor Department guidelines. Id. The
Secretary of Labor expressed concern that
state agencies, unless joined as parties,
would not comply with a DOL directive to5 The conclusion that Labor &
Industry is immune from suit shall be
discussed at greater length in Part C of this opinion.

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

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

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& Industry insist that the one-half tuition
policy would not bar reimbursement for
the chosen program.
Plaintiffs reply that Ronald Zilonka,
the Labor & Industry official in charge of
Trade Act allowances, admitted to the
blanket nature of the policy in his
deposition. A careful reading of the
deposition, however, reveals no such
admission. Zilonka explained that,
normally, other available training could be
found for someone whose program
violated the one-half tuition policy.
Zilonka Dep. at 90 (App. at 84). Zilonka
was clear, however, that the one-half
tuition policy did not act as a total bar to
acceptance of any programs.
Q. This is just a blanket
rule, it doesn’t make any
difference what the tuition
of the training is, if the cost
of travel is more than that,
you can’t get it.
A. Seeing that the
transportation cost takes
away from training cost [sic]
of other individuals across
the C ommonw ealth of
Pennsylvania, each case is
looked at on an individual
basis.
But it has been our policy
since 1993/1994 that any
requested training where the
cost of transportation rises
to a point of half the cost of
transportation—or equal to
t h e c o s t o f
transportation—that every
effort will be made to find
o t h e r t r a i n i n g w i t h in
commuting distance.
Id. (emphasis added). Thus, Zilonka
expressly repudiated opposing counsel’s
statement that the one-half tuition policy is
absolute, and emphasized that Labor &
Industry merely does its best to find
alternate training for those whose
programs have high travel costs.6 In
conclusion, we find that the one-half
tuition policy legitimately attempts to
control costs and is in harmony with the
individualized character of the Trade Act
regulations. We accordingly affirm the
District Court’s conclusion in this regard.
C. Plaintiffs’ Request for
R e i m b u r s e m e n t f r o m
Labor & Industry is
Barred by Sov ereig n
Immunity
As we previously noted, the District
Court dismissed Plaintiffs’ request for
monetary relief from Labor & Industry on
the grounds that it was barred by the
6 Plaintiffs also claim that Hampe
was refused his choice of training program
and not presented a suitable alternative.
Plaintiffs present no evidence, however, to
support this allegation.

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

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

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

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

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

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

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