International Union, United Auto., Aerospace & Agricultural Implement Workers of America v. Donovan, s. 83-1918

• Decision Date: 23 October 1984
• Docket Number: 83-2082,Nos. 83-1918,s. 83-1918
• Citation: 746 F.2d 855,241 U.S.App.D.C. 122
• Parties: , 241 U.S.App.D.C. 122 INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, et al. v. Raymond J. DONOVAN, Secretary of the United States Department of Labor, Appellant. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, et al., Appellants, v. Raymond J. DONOVAN, Secretary of the United States Department of Labor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 855

746 F.2d 855

6 ITRD 1289, 241 U.S.App.D.C. 122

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE &

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, et al. v. Raymond J. DONOVAN, Secretary of the United States

Department of Labor, Appellant.

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE &

AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, et al., Appellants, v. Raymond J. DONOVAN, Secretary of the United States

Department of Labor.

Nos. 83-1918, 83-2082.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 25, 1984.

Decided Oct. 23, 1984.

Appeals from the United States District Court for the District of Columbia (Civil Action No. 82-01458).

Linda Jan S. Pack, Atty., Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and William Kanter, Atty., Dept. of Justice, Washington, D.C., were on the brief, for Donovan, Secretary of the U.S. Dept. of Labor, appellant in No. 83-1918 and cross-appellee in No. 83-2082.

Michael Rubin, San Francisco, Cal., with whom Leonard Page, Detroit, Mich., Stephen P. Berzon, San Francisco, Cal., and Wendy Kahn, Washington, D.C., were on the brief, for Intern. Union, United Auto., Aerospace & Agricultural Implement Workers of America, et al., appellees in No. 83-1918 and cross-appellants in No. 83-2082. A.L. Zwerdling and Stephen I. Schlossburg, Washington, D.C., also entered appearances for Intern. Union, United Auto., Aerospace & Agricultural Implement Workers of America.

Before SCALIA and STARR, Circuit Judges, and GESELL, ^* District Judge of the United States District Court for the District of Columbia.

Opinion for the Court filed by Circuit Judge SCALIA.

SCALIA, Circuit Judge:

This case presents two issues pertaining to retraining benefits for workers adversely affected by foreign competition, provided by the Trade Act of 1974: whether, when Congress provided a $3.7 billion lump-sum appropriation to the Department of Labor's Employment and Training Administration, "for expenses necessary to carry into effect" the Trade Act training program and four other programs, the Secretary of Labor's decision not to allocate any of that amount to the Trade Act training program is judicially reviewable; and whether the Secretary's approval of training under the original version of the 1974 Act, which conferred no rights to compensation for training costs, was effective as the requisite approval under the 1981 amendments which did confer such rights.

I

The Trade Adjustment Assistance ("Trade Act") Program was created by the Trade Expansion Act of 1962, Pub.L. No. 87-794, 76 Stat. 872, for the purpose of providing benefits to workers and companies adversely affected by competition from foreign imports. The program was substantially expanded and revised by the Trade Act of 1974, Pub.L. No. 93-618, 88 Stat.1978. The principal benefits provided to workers are trade readjustment allowances ("TRAs"), which supplement state unemployment insurance benefits. See 19 U.S.C. Secs. 2291-92, 2294 (1982); S.Rep. No. 1298, 93d Cong., 2d Sess. 131, 135-36 (1974), 1974 U.S.Code Cong. & Admin.News 1974, 7186, 7273, 7277-7278.

In 1981, as part of the Omnibus Budget Reconciliation Act ("OBRA"), Pub.L. No. 97-35, 95 Stat. 881, Congress enacted major amendments to the Trade Act of 1974, one aspect of which is the subject of the present litigation. Under the 1974 Act, the Secretary could approve training for a worker when he determined that:

there is no suitable employment available ..., but that suitable employment (which may include technical and professional employment) would be available if the worker received appropriate training....

19 U.S.C. Sec. 2296(a) (1976). Although the Secretary was authorized under this section either to "provide" or "assure" the training (authority which he retains under the existing statute, see 19 U.S.C. Sec. 2296(a)(1) (1982)), he was not required to do so, nor was he authorized to reimburse the worker for costs of approved retraining which the worker himself incurred. The incentive for retraining was 26 weeks of "extended" TRAs (beyond the 52 weeks generally available) payable to workers enrolled in approved programs. 19 U.S.C. Sec. 2293(a)(3) (1976). If a worker refused, without good cause, to accept or continue, or failed to make satisfactory progress in, training to which he had been referred by the Secretary under this provision, he lost his entitlement to these supplemental benefits. 19 U.S.C. 2296(c) (1976).

The 1981 amendment revised the worker training provisions in two respects that are relevant here. First, it added to the conditions that had to be met before the Secretary could approve worker training, requiring the Secretary to determine that:

(A) there is no suitable employment (which may include technical and professional employment) available for a worker,

(B) the worker would benefit from appropriate training,

(C) there is a reasonable expectation of employment following completion of such training,

(D) training approved by the Secretary is available to the worker from either governmental agencies or private sources (which may include area vocational education schools, as defined in section 2461(2) of title 20, and employers), and

(E) the worker is qualified to undertake and complete such training, ....

19 U.S.C. Sec. 2296(a)(1) (1982). If these conditions were met, the statute provided (as it had before) that "the Secretary may approve such training." Id. (emphasis added). It continued (and this is the second major change): "Upon such approval, the worker shall be entitled to have payment of the costs of such training paid on his behalf by the Secretary." Id.

In his instructions regarding implementation of the 1981 amendments to the state employment security agencies ("SESAs") authorized to approve training on his behalf, 19 U.S.C. Sec. 2311, the Secretary directed that training was to be approved only if, in addition to other requirements, "[s]ufficient funds allocated to pay the costs of such training are available. A State agency shall not approve training for a worker when funds to be expended for this purpose would exceed the amount allocated by the Secretary." Dept. of Labor, General Administration Letter No. 4-82 at 7 (Nov. 13, 1981). In other words, the SESAs were to operate on a "funds available" basis and were not to approve any training whose costs would exceed their fund allocations.

Congress did not enact an appropriations bill for the Department of Labor for fiscal year ("FY") 1982. As a result, the Department operated throughout the year under a series of four continuing resolutions. ¹ The first of these--passed on October 1, 1981 and set to expire on November 20, 1981--contained a general funding provision at an annual level of approximately $3.7 billion for the Department's Employment and Training Administration ("ETA"), which administers the Trade Act program along with many other programs. Specifically, the Joint Resolution appropriated funds at the lower of the current rate or the appropriation foreseen in the Departments of Labor, Health and Human Services, and Education and Related Agencies Appropriation Act of 1982, which at that point had passed the House but not the Senate. See Act of Oct. 1, 1981, Sec. 101(a)(1), (3), Pub.L. No. 97-51, 95 Stat. 958, 958-59 (1981). Since the 1982 Act, which provided an appropriation of $3.671 billion, was $3.472 billion below the 1981 appropriation, H.R.Rep. No. 251, 97th Cong., 1st Sess. 6 (1981), it was the governing referent. In full relevant part, the Appropriation Act provided as follows:

For expenses necessary to carry into effect the Comprehensive Employment and Training Act of 1973, as amended, sections 236, 237, and 238 of the Trade Act of 1974, as amended (19 U.S.C. 2101), section 51 of the Internal Revenue Code of 1954, as amended (26 U.S.C. 51), sections 210, 211, and 212 of Public Law 95-250, and the Veterans' Employment and Readjustment Act of 1972, as amended (38 U.S.C. 2003A), including the purchase and hire of passenger motor vehicles, the construction, alteration, and repair of buildings and other facilities, and the purchase of real property for training centers as authorized by the Comprehensive Employment and Training Act of 1973, as amended, $3,671,129,000 plus reimbursements, of which $2,001,000 shall be for the National Commission for Employment Policy: Provided, That no funds from any other appropriation shall be used to provide meal services at or for Job Corps centers.

H.R. 4560, 97th Cong., 1st Sess. 2-3 (1981).

When FY 1982 opened, the Secretary decided to allocate no funds to Trade Act training out of the ETA account. The second continuing resolution, which merely extended the first resolution's expiration date from November 20 to December 15, 1981, provided no new directives. Act of Nov. 23, 1981, Pub.L. No. 97-85, 95 Stat. 1098 (1981). In the third continuing resolution, Congress expressly provided $25 million for the Trade Act program. Act of Dec. 15, 1981, Pub.L. No. 97-92, 95 Stat. 1183, 1185 (1981): "In addition to any sums otherwise appropriated there is appropriated an additional sum of $25,000,000 which shall be made available for training, job search allowances, and relocation allowances, under sections 236, 237, and 238 of the Trade Act of 1974."

The Secretary allocated this $25 million to Trade Act training, job search and relocation, but he allocated the entire original $3.7 billion ETA appropriation to other authorized programs. Congress made no further ETA or Trade Act appropriations for FY 1982; the fourth and final continuing resolution merely extended the third resolution from its expiration date (March 31, 1982) to the end of the fiscal year. Act of Mar. 31, 1982, Pub.L. No. 97-161, 96 Stat. 22 (1982). The Secretary maintained his Trade Act training allocation at $25 million and, through the SESAs, paid for training as many qualified...