_ _ 1_0!_26_I_O~4_'_F._ u 91_'_'_"_"_2tI_ _ _ P_RO_BO::N::O_ ____ __ _ _

~OOI

•

' M IN THE UNITED STATES DISTRlCf COURT FI
Pt FOR THE ~~~AS~ ~~~~ OF TE~CT 26 3: 24

ASOCIACI6N De TRAlJAJADORSS

§

FRONTEIUZOS, JOSE DE LA CRUZ.

§

SANDRA MORA, RODRIGO MORIN,

I;..CE~sE'r;c;.p'.c.'1~.D. r..n."..'·_.I"\.':T COUf: !!le T Of tE XA'S "---~o~ ~~~, --_

SOLEDAD RENTERIA, AND

§

Civil Action No.

MARlSELA RODRIGUEZ,

§

Plaintilfs;

§

§

v.

§

§

U.S . DEPARTMENT OF LABOR, ncfendant.

:EP04CA0400

PLAINTIFFS' POST-SEVERANCE COMPLAlNT On October 20, 2004, this Court severed three specific claims from pending Civil Action No. EP.02-CA-131-FM, ordered PlaiIdiffs to file an atnended complaint that covers the severed claims, and instructed the District Clerk to file this complaint under a separate civil action number.
Asociacl6n de Trabajadores Fronterizos, er al. v. Reed, it 01., Civil Action No. EP-02-CA-131 ~FM
(W.D. Texas) (Dk!. 203). In compliance with the Court', order, Plaintiffs submit the following post-severance complaint, and would respectfully show the Court:
I. INTRODUCTION 1. Asociacion de Trabajadores Fronterizos (ATF). or Association of Border Workers. is a membership organization comprised of thousands of workers whose jobs in the United States have been lost or threatened due to the North AmeriCEltl Free Trade Agreement (NAFTA). ATF, together with individual workers wbp arc its members, bring this action against the United States Department of Labor (DOL) for violatin& the TI11de Act of 1974 (Trade Act) in its administIation of job training benefits for workers who are limited English proficient (LEP). See generally www.1ep,gov. After Congress created Trade Act training as a wtiform remedy for trade-dislocated

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workers, DOL began providing LEP workers with cheap remedial education instead of the bilingual

vocational training that these workers need to find replacement jobs. Plaintiffs seek injunctive relief

as necessary to secure the job training that Congress promised as il remedy to trade-dislocated

workers, even ifthose worker.> happen to speak only Spanish.

2. Plaintiffs allege thr<e specific violations ofl9 U.S.C. §§ 2296 aDd 2320. First, the statute

conditions training approval upon a finding that the training will render each worker completely

jo1J..ready, but DOL allows state agencies to approve incomplete training. Second, the statute

requires DOL to regulate traiItin& approval decisions as necessary to achieve Congress's goal of

80% wage replacement, but DOL has failed to issue any such regulations. 81ld instead allows state

agencies to reject 80% wage-replacement as a standard for tr'aining approval. Third, the statute

requires DOL to ft33\llC that Trade Act trRiniDa- ig J'lrovided on the job insofar as possible, but DOL

regulations reduce on-the-job training to an option that state agencies may ignore,
n. JURISDICflON

3. This Court bas jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) and 28 U.S.C . §§

2201-02 (declaratory judgment).

m. PARTIES

4. PlaintiffAsociacion de Trabojadores Frontemos (ATF) is an advocacy and self-help

workers' organization comprised principally of garment and other workers whose jobs are lost or

threatened due to foreign competition. ATF is a project ofthe Center for Popular Education and

Community Organizing. a non-profit organization that is rccogniztd as eJCempt from taxation Wider

§ 50 I(c)(3) of the Internal Revenue Code.

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5. ATF's purpose is to help Spanisb~speaking workers on the U.S.~Mexico border seek improved working conditions, including better jobs and pay through job training. broader access to health cam, and promotion of permaneotjobs at living wages. A1F offers counseling. assistanct. advocacy, and referral services to trade-dislocated workers. 6. Nearly all AU members are of Mexican oationiU origin, communicate in Spanish, and are limited in their ability to communicate in English. 7. Since 1996, ATF's membership has consistently includ~ numerous LEP workers who qualify for and have undertaken training under the Trade Act. Since 1996, ATF has advocated before DOL for the languagc~relevant vocational ilills training needed by LEP dislocated workers. Since 1996. DOL has consistently recognized ATF as a principal advocate for trade-dislocated workers who seek language-relevant vocational skills Wining. 8. Plaintiffs Jose De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, and Mmisela Rodriguez, are individuals whose permanent place ofresiclencc: is El Paso County, Texas. 9. Defendant United States Department of Labor (DOL) is the federal agency responsible for adnUnistering job training benefits for trade-dislocoted workers under the Trade Act. 19 U.S.C. §§ 2296(0)(9), 2311(a), and 2320.
IV. FACTS A. Statutory Fra)Dework
10. The Trade Act of 1974, 19 U.S.C. § 2291, et seq., as amended, creates a program
of Trade Adjustment Assistance (TAA) as a remedy for workers who lose their jobs as a result of foreign cOmpetition. TAA enables qualified workers to access job training services and cash allowances as necessary to enable them to partiCipate in training.
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11 . TAA has but one stated purpose, which is to enable trade affected workers to "return to
suilable employment." 20 C.F.R. § 617.2. The statute defines '<suitable employment" as
employmenl paying "not less thrut 80% of the worker' s average weekly wage" prior to a trade-
induced layoff. 19 U.S.C. § 22%(e).
12. The Trade Act must be libetally construed to achieve its stated purpose because it is a
remedial.taMe. 20 C.F.R. § 617.52(a); UAWv. Marshall. 584 F.2d 390, 395 & 00. 16-17 (D.C.
Cir. 1978); UAWv. Brock, 816 F.2d 761, 767 (D.C. Cir. 1987).
13. DOL administers TAA and is required to prescribe and enforce all regulations that are
neces.ary to do so. 19 U.S.C. §§ 2296(a)(9) and 2320.
14. DOL may enter into agrcemCDts with cooperating state agencies under which state agencies
act .. DOL agents in administering TAA. 29 U.S .C. §231J(a).
15. All fwlds for TAA benefits and administration are provided by the federal government. 19
U.S.C. § 2317 .
16. The following requirements must be met before any Trade Act training may be approved:
"If the Secretary determines that(A) there is no suitable employment (which may include technical and
professional employment) available for an adversely affected worket, (B) the wo,ker 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 reasonably available to the worker from
either governmental agencies or private sources (which may include area vocational education schools, as defined in section 195(2) of the Vocational Education Act of 1963, and employers)[,]
(E) the worker is qualifi~ to undertake and complete such training, and (F) such training is suitable for the worker and available at a reasonable cost, the Seeret:ary sball approve such trai.ning for the worker. Upon such approval, the worker shall be entitled to have payment of the costs of such (subject to the: limitations imposed by this section) trainini paid on his behalfby the Secretary directly or through a voucher system. Insofar as possible, the Secrctary shall provide or assure the proviSion of such
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IilIOOG

training on the job, which shall include related educntion necessary for the acquisition of skills needed fOI a position within a particular occupation."
19 U.S.C. § 2296(a)(l) (2004).
B. Statutory 'Violations 17. DOL uses the following policy 10 allow state agencies to approve Trade Act training even when the state agencies know that the training program under consideration for approval does not
provide aU of the slciJls that a worker needs to be fully job ready: l'Tbe statute and regulations require that there must be a reasonable expectation of employment upon completion of tJainini and that the worker will be job ready at the completion of training. There may be cases in which the asseSSMent of a worker's skills indicates that the available 104 weeks oftraining, or 130 weeks ifremedial education is needed, may be insuffieient to provide all ofthc training needed by an individual to be job ready at the completion of training, and the individual may need additional training funded by another source. In such cases, the training program that may be approved should provide as many of the job skills as possible."
18. DOL has failed to issue any regulations that name the actions that state agencies are required to take in the troi.ning approval process to achieve Congress's 80% wage replacement goal for Trade Act training, and instead allows state agencies to reject 80'% wage-replacement as a standard for training approval. 19. DOL's on-the-job training regulation, 20 C.F.R. § 617.23(c)(I), allows state agencies to ignore on-the-job training altogether. and to approve classroom training o'Vtt on-the-job training when both types of training are available for a worker and both meet all requirements of 19 U.S .C. §
2296. C. Injury
20. DOL bas entered into an agreement with the State of Texas under which officials and employees of the Texas Workforce Commission (TWC) administer the Trade Act as DOL agents.
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2t. To decide what Trade Act training to approve for each Texas worker, TWC employees follow the policies and practices that are created, approved, and overseen by DOL.
22. According to DOL's c;ertifications ofjob losses due to NAFT~ the City ofEI Paso, Texas, is home to roughly five times more NAFTA-dislocated workers than any other city in the United States. 23. In deciding what Trade Act training to approve for LEP workers in El Paso, TWC and its officials, employees, and agents have acted or failed to act as follows:
a. they approve training that they know to be incomplete at the time of approval, in that they approve training for a worker knowing that the worker will need further training in order to become job ready in a particular occupation;
b. they fail to use 80% wage replacement as a standard for deciding what training [[lay be approved for each worker, and
c. they ignore on-tbe+job training altogether in considering what training to approve, and they fail to require that on-the-job training be approved for a worker each time such an opportunity meets the requirements of 19 U.S.C. § 2296.
24. Defendant DOL approves of the actions and failures to act listed in Paragraph 23. 25. The actions and failures to act alleged in Paragraphs 17 tbrou&h 24 proximately cause lUllawful reliance OD remedial education as a complete or partial substitute for bilingual vocational job training that is necessary to train LEP workers in compliance with 19 U.S.C. § 2296. 26. Improper substitution of remedial education courses for vocational training under the Trade Act injures LEP trade-r;lislocstcd workers, including ATF IIlembers and the individual Plaintiffs, in the following way~;
a deprivation of a federal rigbt;
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b. diminished earning capacity; c. lost wages; and d. diminished access to benefits, including health Wsurance. 27. Plaintiff ATF's membership includes all ofthe individual Plaintiffs and numerous other people who have been injured as described in PilJagraph 26. 28 . Plaintiff AU's membership includes numerous workers who are both LEP and currently employed in the garment and other industries in El Paso that are vulnerable to layoffs due to foreign competition, and thus subject to the injuries described in Paragraph 26. 29. Plaintiff AU has suffered injury to its organizational interests due to DOL's "Violations. of the Trade Act as follows: a. ATF bas devoted significant resources, time, and energy for seven yean tryiI1g to
correct the training deficiencies caused by DOL's illegal actions and failures to act, which bas prevented ATF from addressing other priorities; and b. AU' s inability to prevent the ongoing violations of law at issue in this litigation after seven years of.effort has frustrated ATF's organizational goals and its ability to grow in financial and human resources.
V. CAUSE OF ACTION 30. The Administrative P<ocedure Act, 5 U.S.C. § 706, empower> thi, Court to enter all injunctive and declaratory relief that is necessary to secore DOL's compliance with the Trade Act 3 1. DOL allows state agencies to appro'le incomplete training, as described in Paragraph 17 above. this DOL action violates 19 U.S.C. § 2296(a)(1)(C) and is subject to this Court's corrective injunction under 5 U.S.C. §§ 706(2)(A) and 706(2)(C).

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32. DOL bas failed to issue regulations naming what actions state agcncies are required to take to achieve Congress's ' 80% wage replacement goal for Trade Act training, as described in Paragraph 18 above. This DOL inaction violates 19 U.S.C. §§ 2296(aX9) and 2320, and is subject to this Court's corrective injunction under 5 U.S.C. § 706(1). 33. DOL allows state agencies to ignore on-the-job training,.as described in Paragraph 19 above. This DOL action violates 19 U.S.C. § 2296(aXl) and is subject to this Court' s corrective injunction \Ulder 5 U.S.C. §§ 706(2)(A) and 706(2XC). 34. Each DOL action or failure to act listed in Paragraphs 31 through 33 above proximately causes injury to ATF and its membership, including each individual Plaintiff, as described in Paragraphs 20 through 26 above.
VI. PRAYER 35 . WHEREFORE. Plaintiffi; pray that the Court grnnt them the following ",lief:
a. enter a dedaratory judgment that Defendant U.S . Department of Labor' s policies and practices for Trade Act administration contravene the requirements of 19 U.S.C. § 2296(a)(I) as to training completen..., wage replacemen~ and on-the-job troining, and that these poliCies and practices violate workers' rights to training as provided in 19 U.s.C. § 2296(a)(I );
b. enter an injunction directing Defendant U.S. Department of Labor to-1. disallow ilpproVal of any form of Trade Act training unless the approvin& agency reasonably expects the worker to be fully job ready in a named occupation upon completion of the training program that is under consideration for approval;

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2. promulgate regulations naming what actions state agencies are required to take in the training approval process to achieve Congress' s 80% wage replacement goal for Trade Act training;
3. replace 20 C.F.R. § 61723(c) with a new regulation that states when an-thejob training opportunities must be approved over institutional training;
4. require state agency officials to take appropriB.te action to enforce the correct interpretation of 19 U.S.C. § 2296 in pending and future cases, and, consistent with state law, to correct and remedy any erroneous training
approval dettJminatians by ta:kina aU necessary and appropriate action.
including without limitation providing all bilingual training that is necessary
to comply with the Trade Act for workers who are limited in English
proficiency; and 5. provide montllly reports to the Court and to Plaintiffs on Defendant's
progress in complying with the Court's iqjunction; c. award Plaintiffs, to the extent permitted by law, their costs and liti&ation expenses;
and d. award Plaintiffs all other relief as the Court deems j ust and proper.
Respectfully submitted, TEXAS RlOGRANDE LEGAL AID, INC.

Carmen E. Rodriguez (f Jerome W. Wesevich (IX 1331 texas Avenue
El Paso, Texas 79901
(915) 585-5100
Fax: (915) 544-3789 Attorney. for Plaintiffs

r
ar No. 144 7400) ar No. 21193250)

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PR08nMn

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Dated: October 26, 2004

D. Michael Dale (OR Bar No. 77150) Texas RioOtande Legal Aid, Inc. 1331 Texas Avenue El Paso, Texas 79901 (915) 585-5100 Michael T. Kirkpatrick (DC Bar No. 486293) Public Citizen Litigation Group 1600 20th Street, N.W. Washington. D.C. 20009 (202) 588-1000 Of Counsel to Plointiffil

CERTIFICATE OF SERVICE

I hereby certify that I caused a true and correct copy ofthe foregoina: document to be served upon the following counsel of record in Civil Action No. EP-Q2-CA-131-FM iostantly by electronic mail on October 26, 2004:

Attorney in Charge for TWC: Ramiro Canales Asst. Attorney General Gen, Litigation Div. P.O. Box 12548
Capitol Station Austin, TX 78711-2548

Attorney in Charge for DOL: AlexAI1rua Tsiros Office ofthe Solicitor
U.S. Dept. of Labor 200 COOStitutiOD Ave., N.W., R.n. N-2564 WasbiDgton. D.C. 20210

Attorney in Charge for WDB: Robert Blumenfeld Mendel, Blumenfeld, LLP 5809 Acacia Cir. EIPaso, TX 79912

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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

ASOCIACIONDE TRABAJADORES

§

FRONTERIZOS, JOSE DE LA CRUZ,

§

SANDRA MORA, RODRIGO MORIN,

§

SOLEDAD RENTERIA, AND

§

MARISELA RODRIGUEZ,

§

Plaintiffs;

§

§

v.

§

§

U.S. DEPARTMENT OF LABOR,

§

Defendant.

§

Civil Action No. EP-04-CA-400-FM

MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Carmen E. Rodriguez (TX Bar No. 14417400) Jerome W. Wesevich (TX Bar No. 21193250) Texas RioGrande Legal Aid, Inc. 1331 Texas Avenue EI Paso, Texas 79901 (915) 585-5100 Attorneys for Plaintiffs
Michael T. Kirkpatrick (DC Bar No. 486293) Public Citizen Litigation Group 1600 20th Street, NW Washington, DC 20009 (202) 588-1000 Of Counsel to Plaintiffs

November 5, 2004

TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES .................................................... iii
I. INTRODUCTION ...................................................... 1
II. BACKGROUND ........................................................ 2
A. Factual Background ................................................ 2
B. Statutory and Regulatory Background .................................. 4
III. ARGUMENT ........................................................... 7
A. DOL Violates 19 U.S.c. § 2296(a)(I) By Allowing State Agencies to Approve Training Programs That Do Not Render LEP Workers Job Ready .... 9
1. The Trade Act prohibits approval of incomplete training.............. 9
2. DOL allows TWC to approve incomplete training.................. 11
3. DOL's excuses for allowing incomplete training in violation ofthe Trade Act are irrelevant as a matter oflaw, and unpersuasive in any event. .................................... 12
B. DOL Violates 19 U.S.C. §§ 2296(a) and 2320 By Failing to Regulate as Necessary to Achieve the Trade Act's 80% Wage Replacement Goal .............. " ........................................... 14
1. Congress's goal for Trade Act training is 80% wage replacement. ..... 14
2. The plain language of the Trade Act requires DOL to regulate training approval decisions as necessary to achieve 80% wage replacement. ... 14
3. The ordinary tools of statutory construction show that Congress expects DOL to regulate training approval decisions as necessary to achieve 80% wage replacement. ............................... 15
4. DOL has no 80% wage replacement regulations, and it allows state agencies to reject 80% wage replacement in training approval decisions. . ................................................ 20

5. DOL has no excuse for allowing state agencies to reject 80% wage replacement. ...................................... 22
C. DOL Violates 19 U.S.C. § 2296(a)(1) By Allowing State Agencies to Ignore On-The-Job Training. . ....................................... 23 1. The Trade Act requires DOL to "assure" that training is provided on-the-job "insofar as possible." ...................... 23 2. DOL's regulation reduces on-the-job training to an option that state agencies may ignore. . ............................... 24 3. DOL does nothing when state agencies ignore on-the-job training altogether........................................... 25 4. DOL has no valid excuse for allowing state agencies to ignore on-the-job training. . ................................. 25
IV. INJURY AND REMEDY ................................................ 26 V. CONCLUSION ........................................................ 28
11

TABLE OF AUTHORITIES

CASES (opinions primarily relied upon are preceded with "*")

PAGE

Bowsher v. Merck & Co., 460 U.S. 824 (1983) ..................................................... 14

Bureau ofAlcohol, Tobacco, and Firearms v. Federal Labor Relations Authority, 464 U.S. 89 (1983) ................................................... 14, 16

Cherokee v. Interstate Commerce Com., 641 F.2d 1220 (8th Cir. 1981) ............................................. 15

Chevron US.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) .................................................. 14, 16

Coal Employment Project v. Dole, 889 F.2d 1127 (D.C. Cir. 1989), enforcement ordered, 900 F.2d 367 (D.C. Cir. 1990) ........................................................ 23

Consumers County Mut. Ins. Co. v. PW & Sons Trucking, Inc., 307 F.3d 362 (5th Cir. 2002) ............................................... 7
Davis v. Min eta, 302 F.3d 1104 (10th Cir. 2002) ............................................ 27

Elrod v. Bums, 427 U.S. 347 (1976) ..................................................... 27
Eve ofMilady v. Impression Bridal, Inc., 957 F. Supp. 484 (D.C.N.Y. 1997) ......................................... 27
* FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ................................................. passim

Former Employees of Chevron v. DOL, 298 F. Supp. 2d 1338 (Ct. Int'l Trade 2003) ................................... 6

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1981) ..................................................... 28
Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421 (1987) ..................................................... 16

111

Klomp v. Arizona Department ofEconomic Sec., 611 P.2d 560 (Ariz. App. 1980) ............................................ 13
MCI Telecom. Corp. v. American Telephone & Telegraph Co., 512 U.S. 218 (1994) ..................................................... 16
Marshall v. Com'r ofJobs & Training, 496 N.W.2d 841 (Minn. App. 1993) ........................................ 13
Metropolitan Wash. Airports Authority v. Citizens for the Abatement ofAircraft Noise, Inc., 501 U.S. 252 (1991) ..................................................... 28
Middleton-Keirn v. Stone, 655 F.2d 609 (5th Cir. 1981) .............................................. 27
Miller v. Federal Mine Safety & Health Review Commission, 687 F.2d 194 (7th Cir. 1982) .............................................. 15
Mountain States Teleph. & Telegraph Co. v. Pueblo ofSanta Ana, 472 U.S. 237 (1985) ...................................................... 9
Movitz v. Division ofEmployment & Training, 820 P.2d 1153 (Col. App. 1991) ........................................... 13
National Muffler Dealers Association v. United States, 440 U.S. 472 (1979) ............................................. '" ...... 9
* Norton v. Southern Utah Wilderness Alliance,
124 S. Ct. 2373 (2004) ................................................. 1, 15
* Oregon Natural Resources Council v. Lyng,
882 F.2d 1417 (9th Cir. 1989) ............................................. 15
Paden v. DOL, 562 F.2d 470 (7th Cir. 1977) .............................................. 10
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) ..................................................... 16
UA W v. Brock, 477 U.S. 274 (1986) ..................................................... 28
lV

* UAW v. Brock,
816 F.2d 761 (D.C. Cir. 1987) ......................................... passim
UA W v. Brock, 568 F. Supp. 1047 (D.D.C. 1983), affd in part, 816 F.2d 761 (D.C. Cir. 1987) ....... 16
UA W v. Marshall, 584 F.2d 390 ........................................................ 4, 16
u.s. v. Microsoft Corp.,
147 F.3d 935 (D.C. Cir. 1998) ............................................. 27
White v. Board ofReview, 700 So. 2d 929 (La. App. 1997) ............................................ 13
Whitman v. American Trucking Associations, 531 U.S. 457 (2001) ..................................................... 24
Williams Cos. v. FERC, 345 F.3d 910 (D.C. Cir. 2003) ............................................. 24
STATUTES AND LEGISLATIVE MATERIALS
5 U.S.C. § 551 ................................................................ 8
5 U.S.C. § 706 ........................................................ 1,8, 12, 15
19 U.S.C. § 2296 ......................................................... passim
19 U.S.C. § 2311 ............................................................ 3,5
19 U.S.C. § 2317 .............................................................. 5
19 U.S.c. § 2320 ........................................................ 1, 14, 16
Trade Act of 1974, Pub. L. No. 93-618, 88 Stat. 1978 (1975), codified at 19 U.S.C. § 2101 et seq. .......................................... 4
Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35 § 2506, 95 Stat. 357 (1981) ........................................................ 19
v

Omnibus Trade and Competitiveness Act of 1988, Pub. L. 100-418 § 1424, 102 Stat. 1107 (1988), codified at 19 U.S.c. § 2296(a)(1) (2004) .................. 6
Fed. R. Civ. P. 56 ............................................................ 2, 7 H.R. Conf. Rep. No. 97-208 (1981), reprinted in 1981 U.S.C.C.A.N. 1010 ............... 19 S. Rep. No. 93-1298 (1975), reprinted in 1974 u.S.C.C.A.N. 7186 .................. 18,24 S. Rep. No. 97-139 (1981), reprinted in 1981 u.S.C.C.A.N. 396 .................... 18, 19 H. Rep. No. 97-158 (1981) ..................................................... 19 Library of Congress, H.R. 3982 Bill Summary and Status of Title XXV
(available at http://thomas.loc.gov/bss/d097query.html) ......................... 19 REGULATORY MATERIALS 20 C.F.R. § 617.2 .......................................................... 5, 14 20 C.F.R. § 617.10(a) ........................................................... 5 20 C.F.R. §§ 617.20-21 ......................................................... 5 20 C.F.R. § 617.22 ......................................................... 6, 7, 9 20 C.F.R. § 617.23 ....................................................... 8,24,29 20 C.F.R. § 617.52 ........................................................ passim 20 C.F.R. § 617.59(f)-(g) ........................................................ 5 29 C.F.R. 91.2,40 Fed. Reg. 16304 (Apr. 11, 1975) ................................ 5, 14 51 Fed. Reg. 45840 (Dec. 22, 1986) .............................................. 19 53 Fed. Reg. 48474 (Nov. 30, 1988) ............................................... 9 68 Fed. Reg. 32290 (May 29,2003) ............................................... 7
vi

I. INTRODUCTION Asociacion de Trabajadores Fronterizos (ATF, or Association ofBorder Workers) and several of its individual members brought this action against the U.S. Department of Labor (DOL) for violating the Trade Act of 1974 (Trade Act), specifically 19 U.S.C. §§ 2296 and 2320, in its administration ofjob training benefits for "limited English proficient" (LEP) workers. Congress created Trade Act training as a uniform federal remedy for trade-dislocated workers, but DOL provides LEP workers with cheap remedial education instead of the bilingual vocational training that these workers need to find replacement jobs after the North American Free Trade Agreement (NAFTA) eliminated their livelihoods. DOL violates 19 U.S.C. §§ 2296 and 2320 in three ways. First, the statute conditions training approval upon a finding that the training will render each worker completely job-ready, but DOL allows state agencies to approve incomplete training. Second, the statute requires DOL to regulate training approval decisions as necessary to achieve Congress's goal of 80% wage replacement, but DOL has failed to issue any such regulations, and instead allows state agencies to reject 80% wage-replacement as a standard for training approval. Third, the statute requires DOL to assure that Trade Act training is provided on the job insofar as possible, but DOL regulations reduce on-the-job training to an option that state agencies may ignore. Recent Supreme Court decisions confirm that the Administrative Procedure Act (APA), 5 U.S.C. § 706, provides a framework for this Court to redress the final agency actions and failures to act at issue here. Norton v. Southern Utah Wilderness Alliance, 124 S. Ct. 2373, 2378-81 (2004); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33 (2000). A procedural template for deciding Plaintiffs' claims on summary judgment is provided by UAW v. Brock, 816 F.2d 761, 769 (D.C. Cir. 1987) (affirming summary judgment against DOL for its violation of the Trade Act). No genuine issue exists as to any material fact necessary to decide

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Plaintiffs' claims, and Plaintiffs are entitled to judgment as a matter oflaw. Therefore, pursuant to Fed. R. Civ. P. 56, the Court should grant summary judgment.
II. BACKGROUND
A. Factual Background El Paso has suffered roughly five times more NAFTA-relatedjob losses than any other
city in the United States. Fact 23. 1 In particular, NAFTA decimated EI Paso's once-vibrant garment industry. Levi's, VF Corporation (Lee and Wrangler brands), Farah, Tony Lama Boots, and other companies closed major garment operations in El Paso, laying off some 20,000 workers, many of whom had sewn in EI Paso for decades. Government, academic, and press reports thoroughly document the devastating impact that the NAFTAjob losses have had on El Paso workers and their families, and on the city's entire economy. Fact 24. Of the EI Paso garment workers who lost their jobs due to NAFTA, roughly 95% are of Mexican national origin, 65% are female, and 20% are female single heads of households. Fact 25. The overwhelming majority ofthese workers are LEP. Fact 26. Officials at the highest levels of DOL, including the Secretary of Labor personally, have repeatedly acknowledged the need to improve the efficacy of training available to LEP workers throughout the nation, and particularly along the 2,000-mile border with Mexico. Fact 27.
In general, there are two models for training workers who need both language and vocational skills: "serial" and "bilingual."2 Under the serial approach, workers participate in
I Pursuant to Loc. R. CV-7(b), a Statement of Material Facts as to Which There Is No Genuine Issue accompanies this memorandum. Each fact in this Statement is separately numbered and supported with citation to competent summary judgment evidence. The evidence itself is attached as an appendix to the Statement. Below, Plaintiffs cite each fact and its supporting evidence using "Fact" followed by a number that corresponds to the Statement. 2 Training means supplying missing skills that a person needs to work in a particular job. Thus, before an informed choice among training options may be made, an inventory is needed of each worker's skills before training, and a list of required skills is needed for each occupation that is under consideration as a target for training. Fact 45.

remedial education - English as a Second Language (ESL) and General Education Degree (GED) courses - until they can begin vocational training provided in English. Fact 47. The bilingual approach teaches the language skills necessary for a particular occupation simultaneously with the vocational skills needed to do that particular job. Fact 46. Bilingual training is more expensive than ESL or GED courses, Facts 56 to 58, but bilingual training renders LEP workers job-ready faster and more effectively than serial training. Facts 53 to 55. Bilingual training is used successfully nationwide, and even on a limited basis in EI Paso, to provide LEP workers all language and vocational skills that they need to begin work in numerous occupations paying wages above $8 per hour. Fact 48.
ATF is a membership organization through which approximately 2,000 LEP workers in EI Paso seek improved training and employment options. Facts 2 to 8. Numerous ATF members have qualified for and sought the training benefits that Congress promised to trade-dislocated workers under the Trade Act. Facts 5 and 31. DOL administers the Trade Act training statute by setting and enforcing policy and by distributing federal money to state agencies, including the Texas Workforce Commission (TWC). The state agencies act as agents of DOL in approving individual applications for Trade Act training. 19 U.S.c. §§ 2311(a) and 2320; Facts 16 to 20.
In this lawsuit, Plaintiffs claim that DOL's policies cause ESL and GED courses to be approved as Trade Act training even when these courses do not meet the Trade Act's requirements for completeness, wage replacement, and on-the-job delivery. LEP workers whose Trade Act training primarily consists ofESL and GED courses exit training without the job skills needed to earn wages comparable to their prior earnings. Because of DOL's unlawful conduct,
3

many LEP workers in EI Paso who earned $8 to $13 per hour before NAFTA now work in jobs
paying at or near minimum wage.3 Facts 106 to 115.
B. Statutory and Regulatory Background
President Ford signed the Trade Act into law on January 3, 1975. Pub. L. No. 93-618, 88
Stat. 1978 (1975) (codified at 19 U.S.C. § 2lOi et seq.). As the D.C. Circuit explains:
The Trade Act of 1974 gave the President broad authority to negotiate favorable trade agreements. The overall purpose was to reduce or eliminate tariff and nontariffbarriers to international trade and thus realize the economic and political benefits of a trade-linked world. Congress realized that benefits and burdens of a liberalized international trade policy would not be distributed uniformly throughout the country. Some benefits are general and national, such as lower prices and expansion of more efficient industries. But liberalized trade has fairly predictable costs, costs that often have isolated impacts. One is decline of employment in those domestic industries that are less efficient than their foreign competitors. Domestic industries may also fall prey to subsidies, exchange-rate advantages, and lower wage rates enjoyed by foreign industries. Overall, liberalized international trade may lead, in trade negotiations, to the imposition of burdens on some domestic industries in order to garner benefits for other industries and advance the commonweal.
Congress was of the view that fairness demanded some mechanism whereby the national public, which realizes an overall gain through trade readjustments, can compensate the particular industries and workers who suffer a loss much as the doctrine of eminent domain requires compensation when private property is taken for public use. Otherwise the costs of a federal policy that conferred benefits on the nation as a whole would be imposed on a minority of American workers and industries.
UAWv. Marshall, 584 F.2d 390,395 (D.C. Cir. 1978) (footnotes omitted). Thus, Congress
included a program of Trade Adjustment Assistance (TAA) within the Trade Act as a remedy for
workers who lose their jobs as a result of changes in trade policy. Jd.; Trade Act of 1974, Title II
§ 231, 88 Stat. at 1979, Title II ("Relief from Injury Caused by Import Competition"); 20 C.F.R.
3 The ineffective remedial education classes approved by DOL in violation of the Trade Act have been costly to federal taxpayers, largely because the classes had to be extended and repeated for many workers who needed income support during extensions of their training. See Fact 62 (DOL's Office of Inspector General criticizes serial training for LEP workers in EI Paso as ineffective and a waste of at least $106 million in federal taxpayer dollars.).
4

§ 617.52(a). Congress funds job training through dozens of federal programs with varying statutory requirements, but TAA is the only federal job training program that is explicitly provided as a remedy for displaced workers. Fact 32.
Over its entire thirty-year history, the TAA's only stated purpose has been to enable trade-dislocated workers to "return to suitable employment." 20 C.F.R. § 617.2 (2004); 29 C.F.R. 91.2,40 Fed. Reg. 16304 (Apr. 11, 1975); Fact 37. Congress defines "suitable employment" as employment paying "not less than 80% of the worker's average weekly wage" prior to a trade-induced layoff. 19 U.S.C. § 2296(e).
Funds for all TAA benefits and administration are provided by the federal government through congressional appropriations that DOL distributes among state agencies. 19 U.S.c. §§ 2296(a)(2), 2311(a), and 2317. DOL is required to monitor and enforce state agency compliance with the Trade Act as necessary, which may include assuming direct responsibility for Trade Act administration in states that have demonstrated an inability to follow DOL instructions on how the program is to be operated. 19 U.S.C. § 2311(a)-(b); 20 C.F.R. § 617.59(t)-(g).
The TAA benefits that are available to qualified workers during transition from tradeaffected employment include job training, job search assistance, relocation assistance, and income support. 20 C.F.R. §§ 617.20-21.4 Congress last amended the part of the Trade Act at issue in this litigation in 1988. The statute currently provides:
If the Secretary determines that-
4 Before a worker is eligible for TAA benefits, DOL must certify that the worker's employer was adversely affected by import competition. 19 U.S.c. § 231l(a); 20 C.F.R. § 617.10(a). This lawsuit raises no issue concerning DOL's certification practices, though courts sharply criticize DOL's administration of this part of the Trade Act as well. E.g. Former Employees ofChevron v. DOL, 298 F. Supp. 2d 1338, 1348-50 (Ct. Int'l Trade 2003) ("Whether the result of overwork, incompetence, or indifference (or some combination of the three), the Labor Department deprived workers of the job training and other benefits to which they are entitled.").
5

(A) there is no suitable employment (which may include technical and professional employment) available for an adversely affected 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 reasonably available to the worker from either governmental agencies or private sources (which may include area vocational education schools, as defined in section 195(2) of the Vocational Education Act of 1963, and employers )[,] (E) the worker is qualified to undertake and complete such training, and (F) such training is suitable for the worker and available at a reasonable cost, the Secretary shall approve such training for the worker. Upon such approval, the worker shall be entitled to have payment of the costs of such training (subject to the limitations imposed by this section) paid on his behalf by the Secretary directly or through a voucher system. Insofar as possible, the Secretary shall provide or assure the provision of such training on the job, which shall include related education necessary for the acquisition of skills needed for a position within a particular occupation.
Omnibus Trade and Competitiveness Act of 1988, Pub. L. 100-418 § 1424, 102 Stat. 1107,
1248-49 (1988) (codified at 19 U.S.C. § 2296(a)(1) (2004».
DOL regulations establish the following key requirements for approval of training under
19 U.S.C. § 2296:
(1) 20 C.F.R. § 617.22(f)(2) strictly limits the duration of Trade Act training to 104
weeks oftotal time in training.5
(2) Each Trade Act training program must be expected to prepare the participant to work
in a particular occupation that is named at the time of training approval. 20 C.F.R. §§
6l7.22(a)(3) and (f)(3).
5 After Trade Act amendments enacted in 2002 (which do not include any amendments to the statutes at issue in this case), DOL issued policy guidance allowing up to 26 weeks of remedial education to be added to the 104-week training time limit. Fact 39.
6

(3) "[I]t is the responsibility of the State agency to explore, identify, develop, and secure
training opportunities" that are needed under the Trade Act. 20 C.F.R. § 617.23(a).
(4) The Trade "Act and the implementing regulations in this Part 617 shall be construed
so as to assure insofar as possible the unifonn interpretation and application of the Act
and this Part 617 throughout the United States." 20 C.F.R. § 617.52(b).
DOL has not issued any policy describing how the Trade Act and these regulations are to be
applied in the tens of thousands of cases where LEP workers qualify for Trade Act training and need both language and vocational skills to return to the workforce.6 As TWC explains:
the federal trade program's guidelines originally designed to assist middle-age, middle-class, English-speaking factory workers in the Midwest and northeast, were simply extended to the NAFTA trade affected worker on the Texas-Mexico border with little adjustment to compensate for the significant differences in the populations ofthese economically, culturally and geographically divergent areas.
Facts 44 and 60.
III. ARGUMENT
Summary judgment is to be granted "ifthe pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter oflaw." Fed. R. Civ. P. 56(c); Consumers County Mut. Ins. Co. v. PW & Sons Trucking
Inc., 307 F.3d 362, 365 (5th Cir. 2002). There is no dispute regarding how DOL administers the
6 DOL has issued general policy guidance that covers access ofLEP workers to all services funded by DOL: In certain circumstances, failure to ensure that LEP persons can effectively participate in or benefit from federally assisted programs and activities may violate the prohibition under Title VI of the Civil Rights Act of 1964 ... and Section 188 of the Workforce Investment Act against national origin discrimination.... DOL will strive to ensure that federally assisted programs and activities work in a way that is effective for all beneficiaries including those with limited English proficiency.
68 Fed. Reg. 32290 (May 29, 2003). This policy guidance, however, says nothing about what kind of Trade Act training may be approved for LEP workers. Facts 43 and 60.
7

Trade Act training program for LEP workers. Indeed, these facts are established by DOL's own admissions, including the testimony of officials designated to speak for the agency pursuant to Fed. R. Civ. P. 30(b)(6). The issue in this case is whether DOL violates the Trade Act by allowing state agencies to approve training for LEP workers that fails to meet the Trade Act's requirements for completeness, wage replacement, and on-the-job delivery.
Plaintiffs challenge the following agency actions and failure to act: (1) DOL unlawfully implemented a rule, as defined in 5 U.S.C. § 551(4), that carves out an exception to Congress's requirement in 19 U.S.C. § 2296(a)(I)(C) that training may not be approved unless it will render each worker fully job-ready; (2) DOL unlawfully withheld a rule that Congress specifically required to achieve its 80% wage replacement goal for Trade Act training; and (3) DOL unlawfully implemented a rule, 20 C.F.R. § 617.23(c), which explicitly contradicts Congress's requirement that DOL assure that all training under 19 U.S.C. § 2296(a)(I) be provided on the job "insofar as possible." DOL has based numerous illegal final agency actions upon the actions and inaction named above, including its repeated approval of state agency procedures that reject Congress's commands (these approvals are "rules" under 5 U.S.C. § 551(4» and its payment for individual training contracts that violate 19 U.S.C. 2296 (these payments are "relief' under 5 U.S.C. § 551(13». As detailed below, DOL's actions are "not in accordance with law" under 5 U.S.c. § 706(2)(A) and result in training that is "short of statutory right" under 5 U.S.c. § 706(2)(C). DOL's inaction constitutes "agency action unlawfully withheld" under 5 U.S.C. § 706(1).
8

A. DOL Violates 19 U.S.C. § 2296(a)(I) By Allowing State Agencies to Approve Training Programs That Do Not Render LEP Workers Job-Ready. 1. The Trade Act prohibits approval of incomplete training. The Trade Act specifies six preconditions to approval of any Trade Act training.
19 U.S.c. § 2296(a)(1)-(2). DOL agrees that this is so. Fact 63. One of the six statutory requirements is that the training must produce a "reasonable expectation of employment following completion of such training." 19 U.S.C. § 2296(a)(I)(C). Indeed, DOL states in its official policy directives to state agencies that "Reasonable expectation of employment should be the primary consideration in approval of training." Fact 64 (emphasis added). Incomplete training - training that does not provide a worker with all of the skills that the worker needs to work in the target occupation - is by definition incapable of producing any "expectation of employment" in the occupation for which training is provided, let alone a reasonable expectation.
DOL's own regulations confirm the plain meaning of the statutory text: "Conditions for approval [of Trade Act training] include the ... criterion that the individual will be job ready on completion of the training program." 20 C.F.R. § 617.22(a)(2) (emphasis added). DOL's ''will be job ready" regulation has particular force because it was issued three months after Congress strengthened the Trade Act training approval provision in 1988. 53 Fed. Reg. 48474, 48485-86 (Nov. 30, 1988); National Muffler Dealers Assn. v. United States, 440 U.S. 472, 477 (1979) ("A regulation may have particular force if it is a substantially contemporaneous construction of the statute by those presumed to have been aware of congressional intent.").7
7 See also Brown & Williamson, 529 U.S. at 146, 157 (FDA's contemporaneous disavowal ofjurisdiction over tobacco confIrms "Congress's specifIc intent"); Mountain States Teleph. & Telegraph Co. v. Pueblo o/Santa Ana, 472 U.S. 237, 254 (1985) (an agency's contemporaneous interpretation is "far more likely to [reflect) the actual intent of Congress"). In Paden v. DOL, 562 F.2d 470 (7th Cir. 1977), the court upheld DOL's regulatory interpretation of the Trade Act in part because it was DOL's contemporaneous construction of the Act's legislative history. !d. at 473-74.
9

In accord with DOL's understanding of the statute and regulations, DOL repeatedly
approved the following Trade Act training policy for use in Texas:
III. TAA TRAINING APPROVAL CRITERIA The Omnibus Trade and Competitiveness Act (OTCA) of 1988 provided an opportunity for the U.S. Department of Labor to elaborate on, and significantly expand the rules for approving TAA training.... Following are the criteria which will be used to determine if a request for training can be approved. .... C. A reasonable expectation of employment exists following completion ofthe proposed training. Given the job market conditions expected to exist at the completion of the training, there must be a reasonable expectation [that] the worker will be able to find employment using the skills obtained while in training. The proposed training program must provide all the skills and requirements upon completion which are needed for the worker to be job ready. If the occupation for which the proposed training is preparing the worker requires a license, then the training program must include gaining the license. The worker must be job ready in every aspect immediately upon completion of the training.
Fact 66 (TWC Trade Adjustment Assistance Policy and Procedure Manual) (emphasis added).8
DOL's most direct and succinct interpretation ofthe law at issue in this case is that,
although 19 U.S.C. § 2296(a)(5) lists "remedial education" among allowable Trade Act training
methods, remedial education may be approved as stand-alone training "only where no skills
training is necessary to make the worker job ready upon completion of the training." Fact 67.
"If either the length of training or the type of training is inappropriate for the worker in relation
to his/her background and the availability ofjobs in the market (on completion of the training)
the state has the authority and responsibility to deny approval of such training." Fact 40
(emphasis added).
8 TWC employees are required to comply with TWC's policy manual. Fact 92. DOL decided at least three times that TWC's training completeness policy complies with the law. Fact 66. DOL is required to monitor and enforce TWC's compliance with the policy quoted above. Fact 20. Instead, DOL approves ofTWC's practices despite DOL's knowledge that those practices are inconsistent with TWC's own approved policy. Facts 69 to 71.
10

2. DOL allows TWC to approve incomplete training. LEP trade-dislocated workers in EI Paso typically need to acquire both vocational skills and English skills before they will be job-ready in another occupation. Fact 68. Nonetheless, DOL allows TWC to approve stand-alone remedial education for these workers. Fact 72. DOL not only allows TWC to approve incomplete Trade Act training, but DOL has even studied the issue and recommended this practice. Fact 70. The natural consequence of these DOL actions is that TWC approves incomplete training for LEP workers who need both language and vocational skills before they will be job-ready. TWC does so in the following three ways: (a) it approves ESL and GED courses as a worker's sole training program while naming "ESLlGED" or another form of remedial education as the occupation for which the worker is being trained; (b) it approves remedial education as a worker's sole training program after naming a target occupation for the worker that requires vocational training in addition to remedial education; and (c) it approves training programs that consist of remedial education classes followed by vocational training even while it anticipates that the training program will have to be amended later to extend the length of remedial education to the exclusion of necessary vocational training. Facts 73 to 76. DOL explains its approval of these actions as follows: The statute and regulations require that there must be a reasonable expectation of employment upon completion of training and that the worker will be job ready at the completion of training. There may be cases in which the assessment of a worker's skills indicates that the available 104 weeks of training, or 130 weeks if remedial education is needed, may be insufficient to provide all of the training needed by an individual to be job ready at the completion of training, and the individual may need additional training funded by another source. In such cases,
11

the training program that may be approved should provide as many of the job skills as possible. Fact 71. Thus, while the statute's plain text and contemporaneous regulations establish that Congress specifically intended that only complete training programs be approved under the Trade Act, DOL admits that it has carved out an exception in any case "in which the assessment of a worker's skills indicates that the available 104 weeks of training, or 130 weeks if remedial education is needed, may be insufficient to provide all of the training needed by an individual to be job ready." !d. (emphasis added). DOL lacks authority to create this exception to the statute, rendering its action "not in accordance with law." 5 U.S.C. § 706(2)(A). 3. DOL's excuses for allowing incomplete training in violation of the Trade
Act are irrelevant as a matter oflaw. and unpersuasive in any event. Once a court finds that agency action is not in accordance with law, no further inquiry is needed before the court orders the agency to comply with the law. Id. Nevertheless, DOL will likely repeat the excuses that it made to this Court in the October 20, 2003 hearing for why DOL allows exceptions to the statutory requirement of training completeness. First, DOL may claim that the choice to undertake remedial education instead of bilingual training is ultimately left to each worker, and DOL does not presume to dictate to workers what training they may choose. But DOL already routinely and strictly limits worker choice as to Trade Act training whenever DOL and its state agencies choose to do so and have a legal reason for doing so. Fact 40. In cases directly on point here, state agencies consistently refuse to permit workers to choose law school as their Trade Act training because law school cannot not be completed within the 104 weeks allowed by law. E.g., Marshall v. Com 'r ofJobs & Training, 496 N.W.2d 841,843
12

(Minn. App. 1993}.9 The same reasoning establishes that DOL may not allow any training
option to be "chosen" for an LEP worker unless that option is reasonably expected to render the
worker fully job ready. 10 DOL must apply its limitations on training choice just as strictly when
the "chosen" training is inexpensive (ESL) as it does when the chosen training is expensive (law
school, helicopter pilot school, etc.), because in both instances the training does not conform to
the statutory requirement.
Second, DOL may claim that providing LEP workers with ESL and GED courses is the
best practical option available to many LEP workers considering their pre-training skill levels.
But DOL has known since 1997 that bilingual training is superior to serial training for most LEP
workers. Facts 53 to 55. This is why DOL has claimed to attempt to expand bilingual training
opportunities in EI Paso for years. After several documented failures lasting into 2003, DOL
now claims that adequate bilingual training opportunities are currently available to trade-affected
LEP workers in EI Paso. Facts 48 to 51. lI Indeed, DOL says it is "horrified" that some workers
do not "choose" these bilingual training opportunities. Fact 52; see also note 10, supra. Thus,
9 Accord Movitz v. Division ofEmployment & Training, 820 P.2d 1153, 1155-56 (Col. App. 1991) (law school tuition denied because the Trade Act prohibits participant contributions to training costs); Klomp v. Arizona Dep't of Economic Sec., 611 P.2d 560,562 (Ariz. App. 1980) (law school tuition denied because the applicant was not likely to fmish the program within the maximum time limit). Agencies regularly deny chosen Trade Act training in occupations that, for various reasons, do not meet the Trade Act's requirements. See, e.g., White v. Board of Review, 700 So.2d 929 (La. App. 1997) (court reporter training case; choice denied because program exceeded 104week limit, would not make applicant job-ready because required passage of a certification exam with a low pass rate, and because no person approved for the program had ever completed it); Fact 40 (cataloguing worker training choices that DOL says are appropriately rejected, including training for self-employment, occupations involving commission sales, airplane pilots, helicopter pilots, taxidermists, florists, and cosmetology teachers).
10 ATF contends that LEP workers who "choose" remedial ESL courses instead of bilingual training do so because their case managers have failed to provide sufficient information to enable the workers to make informed choices about their training options, or because the only bilingual training opportunities that were made available to the workers were of an occupation type or quality that was unacceptable to the workers. But this argument depends on disputed fact issues that are not material to decision of the claims at issue in this case.
II Plaintiffs dispute whether adequate bilingual training opportunities are in fact available in El Paso, but this disputed fact issue is not material to decision of the claims at issue in this case.
13

DOL's own admissions regarding the efficacy and availability of bilingual training belie any excuse for allowing incomplete training in the form of remedial education to substitute for bilingual training for EI Paso's LEP workers. B. DOL Violates 19 U.S.C. §§ 2296(a) and 2320 By Failing to Regulate as Necessary to
Achieve the Trade Act's 80% Wage Replacement Goal. 1. Congress's goal for Trade Act training is 80% wage re.placement. DOL admits that employment paying 80% or more of each worker's prior wages is Congress's goal for Trade Act training. Fact 77; see also 19 U.S.C. § 2296(e); 20 C.F.R. §§ 617.2 and 617.52(a). This has been the only stated purpose of Trade Act training since the Trade Act's original enactment. Id.; 29 C.F.R. § 91.2,40 Fed. Reg. 16304 (Apr. 11, 1975); Fact 37. 2. The plain language of the Trade Act reQuires DOL to regulate training
approval decisions as necessary to achieve 80% wage replacement. The Trade Act's text requires DOL to prescribe all regulations necessary to ensure that approved training complies with the Trade Act. 19 U.S.C. § 2296(a)(9) ("The Secretary shall prescribe regulations which set forth the criteria under each of the subparagraphs of [the training approval statute, § 2296(1)] that will be used as the basis for making determinations under paragraph (1)."); id. at § 2320 ("The Secretary shall prescribe such regulations as may be necessary to carry out the provisions of this part."). DOL must administer the Trade Act to achieve Congress's clearly expressed intent. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 US. 837, 843 n.9 (1984); Bureau ofAlcohol, Tobacco, & Firearms v. Federal Labor Relations Authority, 464 US. 89,97 (1983); Bowsher v. Merck & Co., 460 US. 824, 836 (1983). In deciding whether statutory text requires agency regulation, courts must give due consideration to each statute's objective:
14

When interpreting an agency's enabling act under Chevron, the 'inquiry into whether Congress has directly spoken to the precise question at issue is shaped, at least in some measure, by the nature of the question presented.' The more an issue touches a statute's "core objective," or carries 'economic and political significance,' the more courts search for a statutory construction that is consistent with Congress's expressed intent. 'Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute's daily administration. '
Brown & Williamson, 529 U.S. at 159-60 (citations omitted).12
The Supreme Court's recent decision in Norton, 124 S. Ct. at 2379-81, identifies two
limits upon courts' power to redress agency inaction under 5 U.S.C. § 706(1), neither of which
applies here. First, the statutory requirement for "discrete agency action" that the Court found
absent in Norton, 124 S. Ct. at 2381, is present in this case at 19 U.S.C. § 2296(a)(9). Second,
the Norton Court declined to involve the judiciary in interpreting "broad statutory mandates" that
are subjective, 124 S. Ct. at 2381, but the 80% wage replacement standard at issue in this case is
quintessentially objective. Thus, Norton's rationale only confirms that DOL must regulate the
Trade Act training approval process to achieve Congress's 80% wage replacement goal.
3. The ordinal)' tools of statutory construction show that Congress expects DOL to regulate training approval decisions as necessal)' to achieve 80% wage replacement.
As stated above, the Trade Act's plain language by itself establishes that DOL must
regulate training approval decisions as necessary to achieve 80% wage replacement. The
ordinary tools of statutory construction only confirm that Congress requires DOL to so regulate.
"If a court, employing traditional tools of statutory construction, ascertains that Congress had an
12 See also Oregon Natural Resources Council v. Lyng, 882 F.2d 1417, 1427 (9th CiT. 1989) (agency must promulgate regulations where the statute provides "the Secretary shall promulgate ... such rules and regulations as he deems necessary to accomplish the purposes ... of this title"); Miller v. Federal Mine Safety & Health Review Commission, 687 F.2d 194, 195 (7th Cir. 1982) (federal courts are obliged to give effect to legislative purpose "even if it is imperfectly expressed in the statutory language."); Cherokee v. Interstate Commerce Com., 641 F.2d 1220, 1227 (8th Cir. 1981) (federal agencies may not "deviate from or ignore the ascertainable legislative intent").
15

intention on the precise question at issue, that intention is the law and must be given effect." Chevron, 467 U.S. at 843 n.9. "The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." Id.13 Thus, determination of whether Congress has spoken to the precise question at issue here - whether DOL must regulate training approval decisions as necessary to achieve Congress's 80% wage replacement goal- is ultimately based upon the Trade Act's purpose, text, structure, and history. Brock, 816 F.2d at 765-67.
(al Purpose. It is undisputed that the purpose of Trade Act training is to return tradedislocated workers to employment at 80% or more of their prior wages. Fact 77.
(b) Text. As described above, the Trade Act's text requires DOL to prescribe all regulations necessary to ensure that only training that complies with the Trade Act is approved. 19 U.S.C. §§ 2296(a)(9) and 2320. Moreover, the "[f]irst rule of construction [is that the Trade] Act and the implementing regulations ... shall be construed liberally so as to carry out the purpose of the Act." 20 C.F.R. § 6l7.52(a) (emphasis added). Courts further require liberal construction of the Trade Act's text to achieve the Act's single purpose. UAWv. Brock, 568 F. Supp. 1047, 1053 (D.D.C. 1983), aff'd in part, 816 F.2d at 766-67; Marshall, 584 F.2d at 395 & nn. 16-17. Finally, the Trade "Act and the implementing regulations ... shall be construed so as to assure insofar as possible the uniform interpretation and application of the Act and this Part 617 throughout the United States." 20 C.F.R. § 6l7.52(b) (emphasis added). Uniform
\3 Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994) (The ordinary tools of statutory construction used to decide what questions Congress has decided are the "statute's language, structure, purpose, [and] legislative history."). When Congress has directly spoken to an issue, Congress's view binds agencies regardless of whether statutory text could be clearer. E.g., MCI Telecom. Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 228 (1994); Immigration and Naturalization Servo V. Cardoza-Fonseca, 480 U.S. 421, 447 (1987); Federal Labor Relations Authority, 464 U.S. at 97.
16

interpretation and application of the Trade Act and implementing regulations is only feasible if DOL specifies what actions state agencies must take in the training approval process to achieve 80% wage replacement. See pages 18 and 22, infra.
(c) Structure. Congress structured Trade Act training as a capped entitlement, which means that qualified workers across the nation have their training paid from a single limited pool of federal funds. 19 U.S.C. § 2296(a)(2). Thus, more training money for some workers can mean less for others. Id. Indeed, DOL has known for over a decade that state agencies use vastly differing practices for taking wage replacement into account in their training approval decisions. Facts 83 to 88. Yet DOL has refused calls from state agencies and its own Office of Inspector General to provide more regulatory control over the training approval process. Facts 44 and 88. Without regulation on wage replacement, state agencies that strive for higher wages for their workers are left to compete against more careless state agencies for limited training funds. Facts 110 to 115. DOL acknowledges the structural argument in favor of wagereplacement regulation:
The entitlement nature of the TAA program, plus the statutory limitation on the amount of funds which may be expended on training, requires the Department to institute procedures which ensure that States are funded equitably and that the $80 million training cap is not exceeded. Fact 84. Yet DOL has no objective basis for its funding decisions on Trade Act training. It does not even document its reasons for approving or denying the periodic requests for Trade Act training funds that it receives from 52 state agencies with differing rules and competencies. Fact 114. Accordingly, the capped entitlement structure of the Trade Act training statute itself calls for DOL regulation on how wage replacement is to be considered in training approval decisions.
17

See Brown & Williamson, 529 U.S. at 133 ("A court must [interpret statutes] as a symmetrical and coherent regulatory scheme, and fit, if possible, all parts into an harmonious whole").
(d) History. The Trade Act's contemporaneous legislative history is replete with expressions of Congress's intent that Trade Act training produce "suitable employment"replacement jobs for workers at 80% or more of their prior wages. Congress has explicitly and repeatedly made this point:
If the Secretary of Labor determines that there is no suitable employment available and suitable employment would be available if the adversely affected worker received the appropriate training, the Secretary may approve such training. S. REp. No. 97-139,534 (1981), reprinted in 1981 u.S.C.C.A.N. 396, 710, 800 (emphasis added); accord S. REp. No. 93-1298, 94 (1975), reprinted in 1974 U.S.C.C.A.N. 7186, 7280 ("It is intended that every effort be made to place workers in suitable employment ... and that training be authorized only when the Secretary finds that suitable employment is not otherwise available.") (emphasis added). Examination of how the Trade Act's current text evolved from its original form confirms that "suitable employment" is Congress's objective for Trade Act training. When originally enacted, the Trade Act provided: If the Secretary determines that there is no suitable employment available for an adversely affected worker covered by a certification under Subchapter A of this chapter, but that suitable employment (which may include technical and professional employment) would be available if the worker received appropriate training, he may approve such training. Trade Act of 1974, Pub. L. No. 93-618, § 236, 88 Stat. 1978,2023 (1975) (codified as 19 U.S.c. § 2296(A)) (emphasis added). Congress amended the statute in 1981 to adopt the text and structure at issue in this case, which divided into subparts and elaborated upon the various determinations that the Secretary must make to approve training. Omnibus Budget
18

Reconciliation Act of 1981, Pub. L. No. 97-35, § 2506, 95 Stat. 357, 884-85 (1981). When
Congress restructured the text of 19 U.S.C. § 2296 in 1981, it reemphasized its single objective
for Trade Act training. The Senate Report accompanying the 1981 amendment reiterates that
training may only be provided if "suitable employment would be available if the adversely
affected worker received the appropriate training," and unequivocally states that "[t]here is no
change under the bill in the Secretary's training authorities under section [2296] ofthe Trade
Act." S. REp. No. 97-139 at 534-35 (1981). The House Report on the 1981 amendment
reaffirms the "suitable employment" objective even more forcefully:
For purposes of amended sections [2295 and 2296] the term "suitable employment" is defined to mean "work of a substantially equal or higher skill level" than the worker's previous adversely affected employment "at not less than 80 percent ofthe worker's average weekly wage." ... The Committee believes it is in the interest of the Nation's overall standard ofliving as well as that of individual workers to seek their re-employment in equal or higher skill and wage level occupations rather than to force or retain them in minimum wage or State [Unemployment Insurance] benefit level jobs.
H. REp. No. 97-158 at 276 (1981).14 DOL's first final regulations implementing the 1981
amendments stated that these amendments "are designed to assist adversely affected workers to
return to work in equivalent or better employment as quickly as possible." 51 Fed. Reg. 45840
(Dec. 22, 1986).
14 The resulting conference report describes each minute substantive change intended by the 1981 amendment (e.g.,
directions to provide training benefit information, authorization to defray transportation expenses when training facilities are outside commuting distance, etc.), but it says nothing about changing the key objective of Trade Act training. H.R. CONF. REp. No. 97- 208, 1003-04 (1981), reprinted in 1981 U.S.C.C.A.N. 10tO, 1365-66; accord Library of Congress, H.R. 3982 Bill Summary and Status at Title XXV, http://thomas.loc.govlbss/d097query.htrnl (detailing each minor substantive Trade Act amendment without mentioning any change in the training objective). Instead, the legislative history of the 1981 Trade Act amendment is replete with expressions of intent to "strengthen" Trade Act training, vastly increase the money available for it, and make it a more attractive option for trade-dislocated workers. H. R. REp. No. 97-158 at 251, 274, 276, 279; S. REp. No. 97-139 at 444,534-35.
19

4. DOL has no 80% wage replacement regulations, and it allows state agencies to reject 80% wage replacement in training approval decisions.
Rather than regulate as necessary to achieve 80% wage replacement, DOL instead informs state agencies that the Trade Act's 80% wage replacement standard is non-binding. Fact 78. Not only does DOL emphasize to state agencies that the 80% wage replacement standard is precatory and entirely unenforceable, but its numerous statements on this subject are so conflicting as to be incomprehensible. On the one hand, DOL states that the six criteria for training approval under 19 U.S.C. 2296(a)(I) "are intended to assure that training will lead to suitable employment," and on the other hand, it states that the absence of "suitable" before "employment" in 19 U.S.c. § 2296(a)(1)(C) shows that Congress "never intended training to lead to ... suitable employment." Facts 78 to 80. DOL has no policy describing how state agencies must consider 80% wage replacement when approving Trade Act training. Fact 81. DOL does not require state agencies to take any action in the training approval process to achieve 80% or more in wage replacement. Fact 82. In deciding how to allocate Congress's Trade Act training appropriation among states, DOL knows nothing about, and does not take into account, what wage replacement levels are expected to be achieved by workers for whom funding is sought. Fact 83. 15
Consequently, state agencies that aggressively protect workers, in states like Pennsylvania, get the resources to enable their workers to achieve high wage replacement rates. And state agencies that are less interested in protecting workers, like TWC in Texas, get far fewer resources from DOL and have no impetus to improve their efforts on behalf of trade-
15 DOL admits that it does not require state agencies to condition approval of Trade Act training upon any determination as to whether training could lead to employment paying 80% or more of each worker's prior wages. In fact, DOL admits that it does not require state agencies to estimate post-training wages at all, or take them into account in deciding what Trade Act training to approve. Fact 82.
20

dislocated workers. 16 In 1993, DOL's own Inspector General identified the need for increased DOL guidance to reduce wide variance in wage replacement consequences of Trade Act training among states. DOL still steadfastly refuses to provide any such guidance. Fact 87. Wide variance among states persists today. Fact 88. DOL knows that trade-dislocated workers in El Paso only attain 50% to 70% in wage replacement after Trade Act training. Fact 95.
Not only does DOL fail to require state agencies to take any action in pursuit ofthe sole purpose of Trade Act training, DOL allows state agencies to affirmatively reject the 80% wage replacement standard. DOL repeatedly approved TWC's formal instructions to its Trade Act caseworkers that "[w]hether the employment pays 80% ofthe affected average weekly wage is not a consideration in determining if there is a reasonable expectation of employment following training." Fact 93. TWC's policy manual says nothing else about the wage replacement consequences of training. TWC has no policy that states how its employees are to take the Trade Act's 80% wage replacement standard into account when deciding what training to approve. Fact 89. Consequently, TWC employees do not consider wage replacement in making these decisions. Fact 90. From April 1998 to March 2003, Jose Guzman supervised TWC's Regional Trade Unit in El Paso, which had final authority to approve Trade Act training contracts, and he testified that he did not believe that any wage replacement goal whatsoever applied to Trade Act training. Fact 91.
16 For the average Pennsylvania worker during each year between 1997 and 2002, DOL almost always spent two to
25 times the amount that it spent to train the average Texas worker under 19 u.s.c. § 2296(a). Fact 111.
Averaging all of DOL's Trade Act training expenditures between 1997 and 2002 for Texas and Pennsylvania yields an average Trade Act training cost of $2, 144 for Texas workers and $8,354 for Pennsylvania workers. Fact 112. DOL cannot name any objective basis for spending four times more money to train Pennsylvania workers than it does to train Texas workers who qualify for the very same training benefit. Fact 113.
21

DOL has violated the Trade Act by refusing to issue regulations stating what actions state agencies must take in the training approval process to achieve Congress's 80% wage replacement goal. By allowing state agencies to ignore, and even reject, Congress's single wage-replacement goal for its $2 billion Trade Act training statute, DOL violates the Trade Act. Facts 94 and 115.
5. DOL has no excuse for allowing state agencies to reject 80% wage replacement.
Since DOL itself claims that it has no objection to states seeking 80% or more in wage replacement from Trade Act training, Facts 77 to 79, it can raise no practical objection to a requirement that it decide what actions state agencies must take in the training approval process to achieve 80% wage replacement. DOL has many simple options to choose from, including requiring state agencies to:
(a) prohibit approval of any training program that is not reasonably expected to produce 80% or more in wage replacement; (b) approve training that is reasonably expected to produce 80% or more in wage replacement whenever possible; (c) identify and discuss every training option for each worker that may produce 80% or more in wage replacement, and inform workers that 80% or more in wage replacement is the objective of Trade Act training; or (d) document (i.e., place in a writing that is signed by the worker and reported to DOL) the expected wage replacement consequences of the training chosen by the worker and the wage replacement consequences of the alternative training options that were discussed with the worker and rejected.
22

See Fact 82. Although ATF maintains that Congress in fact requires DOL to implement the first of these options, the relief that ATF seeks in this litigation is more limited out of respect for DOL's prerogative to reconsider its administration of the law. See Coal Employment Project v. Dole, 889 F.2d 1127, 1138-39 (D.C. Cir. 1989), enforcement ordered, 900 F.2d 367, 368 (D.C. Cir. 1990) (affording DOL an opportunity to decide how to comply with the court's interpretation of a mine safety statute before ordering more specific compliance measures). If DOL implements any substantial requirement that state agencies work to achieve Congress's 80% wage replacement goal, as in any ofthe four options described above, the practical impact of one option vis a vis another may prove insubstantial. Workers would have to evaluate the content and impact of DOL efforts to improve the broken system before deciding whether future challenges are necessary.
For LEP workers, including ATF's membership, the practical impact of a DOL requirement that state agencies take specific actions to achieve 80% wage replacement would be to increase the number ofLEP workers who participate in bilingual training. Bilingual training places more and higher-paying occupations within the reach ofLEP workers as compared to the occupations for which LEP workers could train in the allowed time using serial training methods. Facts 53, 62, 95, and 108. C. DOL Violates 19 U.S.C. § 2296(a)(1) By Allowing State Agencies to Ignore On-The-
Job Training. 1. The Trade Act requires DOL to "assure" that training is provided on-the-job
"insofar as possible." The Trade Act is unambiguous: "Insofar as possible, the Secretary shall provide or assure the provision of [Trade Act] training on the job ...." 19 U.S.C. § 2296(a)(1). Where statutory text unambiguously requires agency action, courts need look no further before requiring an
23

agency to comply with that text. Whitman v. Am. Trucking Assns, 531 U.S. 457, 465 (2001);
Williams Cos. v. FERC, 345 F.3d 910,914 (D.C. Cir. 2003). The Trade Act's contemporaneous
legislative history underscores the absolute command included in the statute's text:
The ultimate objective of training programs is the placement of a worker in actual employment. On-the-job training is, therefore, the most desirable type of training since it accomplishes this objective at the beginning rather than at the end of the process. The bill accordingly directs the maximum feasible use of training on the job.
s. REp. No. 93-1298 at 93, reprinted in 1974 u.S.C.C.A.N. at 7279 (emphasis added).
2. DOL's regulation reduces on-the-job training to an option that state agencies may ignore.
DOL has impermissibly rejected Congress's directive to "assure" that Trade Act training
is provided on the job "insofar as possible." DOL's on-the-job training (OJT) regulation
provides:
(c) Methods of training. Adversely affected workers may be provided either one or a combination of the following methods of training:
(l) Insofar as possible, priority will be given to on-the-job training ....; and (2) Institutional training, with priority given to providing the training in public area vocational education schools if it is determined that such schools are at least as effective and efficient as other institutional alternatives ....
20 C.F.R. § 617.23 (emphasis added). On its face, this regulation fails to "assure" that Trade Act
training is provided on the job "insofar as possible" because it: (a) uses "may be provided either
one or a combination of ... methods" to explicitly render on-the-job training an option rather than
a preferred training method; (b) requires only that states afford an undefined "priority" to on the
job training while requiring that an undefined "priority" also be afforded institutional training,
without providing any guidance as to how these two competing "priorities" are to be reconciled;
and (c) uses "insofar as possible" to modify the undefined "priority" while the Trade Act uses
"insofar as possible" to modify "training."

DOL acknowledges the practical impact of its regulation. DOL admits that it does not require states to choose on-the-job training over institutional training when both are available to a worker and both meet the Trade Act's six statutory requirements. Fact 96. DOL also admits that a requirement that "training" be provided on the job "insofar as possible" is different and stronger than a requirement that on-the-job training be afforded a priority "insofar as possible." Fact 102. So while Congress "directs maximum feasible use of training on the job," DOL does not.
3. DOL does nothing when state agencies ignore on-the-job training altogether. TWC does not use OJT as Trade Act training in EI Paso, nor does it attempt to do so. Facts 97 and 98. DOL knows this. Even so, DOL admits that although it "discussed on-the-job training as one of the training opportunities available to dislocated workers and employers" in EI Paso, it has taken "no specific action" to encourage or assist in the creation, expansion, or improvement of on-the-job training opportunities there. Facts 100 and 101. DOL has taken no action even though DOL has a number of options available to increase access to OJT for tradeaffected workers. Fact 99. Since EI Paso's local workforce development board successfully uses federal Workforce Investment Act money to train EI Paso workers on the job, including LEP workers, it is indisputable that efforts to increase OJT opportunities in the Trade Act program could be successful. Facts 103 to 105. 4. DOL has no valid excuse for allowing state agencies to ignore on-the-job
training. Although irrelevant to the issue of whether DOL violates the Trade Act with respect to OJT, DOL will likely offer two practical justifications in defense of its OJT regulation. First, DOL may claim that its regulation is necessary to respect worker choice in training. This excuse
25

is inapposite because DOL regularly applies the principle that the Trade Act's requirements trump worker choice. Fact 40. Indeed, ATF submits that more LEP workers would choose OJT if DOL provided clear policy guidance to state agencies about when OJT must be supplemented with remedial education, rather than issuing inaccurate and confusing statements about the matterY
Second, DOL may attempt to defend its OJT regulation by asserting that lack of interest among El Paso businesses, not DOL's regulations, explains the absence ofOJT in El Paso. But DOL can hardly be heard to claim that OJT is not attractive to local businesses before it even attempts to implement the statutory requirement. Ample evidence proves that more El Paso businesses would provide OJT opportunities ifthis option were actively promoted. Facts 103 to 105. At most, DOL could dispute the extent to which training needs could practically be met using OJT. But this possible disputed issue of fact goes only to the extent to which ATF's members are injured by DOL's violation oflaw, not to whether they are injured, and is irrelevant to whether DOL's regulation violates Congress's direct statutory command.
IV. INJURY AND REMEDY Several undisputed facts establish that ATF and its members suffer sufficient injury to secure an order requiring DOL to comply with the Trade Act in the three respects at issue in this case. ATF is comprised of numerous LEP workers in EI Paso who have lost their jobs due to foreign competition. Facts 2 to 5. El Paso garment workers, including many ATF members,
17 The plain text of the last sentence in 19 U.S.c. § 2296(a)(I) requires OIT to be supplemented with English and other remedial courses as necessary to make each worker fully job-ready. Yet DOL has defended its indifference to the absence of OIT in EI Paso as follows: "Because claimants do not receive remedial training if enrolled in OIT, claimants are reluctant to accept an OIT opportunity." Fact 105. Instead of condoning direct violations of the Trade Act's text, and citing them in its own defense, DOL should be providing state agencies with clear guidance and enforcement as necessary to ensure that workers who need remedial education receive it in conjunction with OJT - i.e., provide bilingual OIT to LEP workers. See also note 10, supra.
26

commonly earned between $8 and $13 per hour before they were laid off due to NAFTA. Fact 106. Numerous ATF members have undertaken and are undertaking Trade Act training programs that primarily consist of institutional ESL and GED courses, and that do not provide the skills necessary to be fully job-ready in another occupation upon completion. Fact 107. After they have undertaken institutional training that primarily consists of ESL and GED courses, the only employment available to many ofEI Paso's former garment workers, including numerous ATF members, has been at or near the federal minimum wage of$5.15 per hour. Facts 95 and 108. DOL knows that increasing access to bilingual training for LEP workers in El Paso is necessary to improve the economic benefit that workers derive from training. Fact 27. Bilingual vocational training, which would be increased through compliance with all three statutory requirements at issue in this case, has proved successful in enabling LEP workers in El Paso to complete training and enter occupations paying 80% or more of prior wages. Facts 48, 53, and 119. Thus, DOL's unlawful policies have hurt ATF members' earning potential. Also, if this Court agrees that any of the challenged DOL policies violate federal law, ATF members have been injured by deprivation of a federal right, which is itself injury enough to require an order remedying those violations. US. v. Microsoft Corp., 147 F.3d 935,944 (D.C. Cir. 1998) (quoting United States v. Diapu/se, 457 F.2d 25,27-28 (2d Cir. 1972) ("The passage ofthe statute is, in a sense, an implied finding that violations will harm the public and ought, if necessary, to be restrained."». 18
DOL's violations oflaw also injure ATF's organizational interests. The interests that ATF seeks to protect in this lawsuit are germane to its purpose. Fact 6. ATF has devoted
18 Accord Elrod v. Burns, 427 U.S. 347, 373 (1976) (constitutional violation); Davis v. Mineta, 302 F.3d 1104, 1115 (10th Cir. 2002) (NEPA violation); Middleton-Keirn v. Stone, 655 F.2d 609,612 (5th Cir. 1981) (Title VII); Eve ofMilady v. Impression Bridal. Inc., 957 F.Supp. 484, 488-89 (D.C.N.Y. 1997) (copyright).
27

significant resources, time, and energy over seven years to undertake a broad range of actions that brought the issues presented in this case to the attention of officials at the highest levels of DOL. Fact 116. ATF's commitment to completing this work has prevented it from addressing its other priorities, fact 117, and ATF's inability to secure adequate training for its members after seven years of effort has frustrated ATF's organizational goals. Fact 118. These organizational harms are by themselves injury enough to require a court order remedying any violations of law.
Metro. Wash. Airports Auth. v. Citizens/or the Abatement 0/Aircraft Noise, Inc., 501 U.S. 252,
264-65 (1991); Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1981). Plaintiffs seek the identical form ofreliefthat courts have on at least two occasions
ordered for similarly situated Plaintiffs after finding DOL in violation of the Trade Act. Fact 122. Just as the Supreme Court directed in UAWv. Brock, 477 U.S. 274, 287-88 (1986), these orders leave federal courts in charge of deciding what Congress requires in the Trade Act, while respecting DOL's role as Trade Act administrator, as well as the statutory role that state courts play in deciding how the Trade Act's requirements apply to the cases of individual workers. Id. Thus, the remedial framework established by Brock provides a tested roadmap for securing DOL's compliance with the Trade Act while appropriately respecting DOL's prerogative to decide for itself in the first instance how to bring its policies into compliance with federal law. ATF respectfully requests that this Court proceed in the same manner in this case.
V. CONCLUSION For the foregoing reasons, the Court should grant summary judgment for Plaintiffs and order the following relief: a. a declaratory judgment that Defendant U.S. Department of Labor's policies and
practices for Trade Act administration contravene the requirements of 19 U.S.C. §
28

2296(a)(1) as to training completeness, wage replacement, and on-the-job training, and that these policies and practices violate workers' rights to training as provided in 19 U.S.c. § 2296(a)(1); b. an injunction directing Defendant U.S. Department of Labor t o 1. disallow approval of any form of Trade Act training unless the approving
agency reasonably expects the worker to be fully job ready in a named occupation upon completion of the training program that is under consideration for approval; 2. promulgate regulations naming what actions state agencies are required to take in the training approval process to achieve Congress's 80% wage replacement goal for Trade Act training; 3. replace 20 C.F.R. § 617.23(c) with a new regulation that states when onthe-job training opportunities must be approved over institutional training; 4. require state agency officials to take appropriate action to enforce the correct interpretation of 19 U.S.C. § 2296 in pending and future cases, and, consistent with state law, to correct and remedy any erroneous training approval determinations by taking all necessary and appropriate action, including without limitation providing all bilingual training that is necessary to comply with the Trade Act for workers who are limited in English proficiency; and 5. provide monthly reports to the Court and to Plaintiffs on Defendant's progress in complying with the Court's injunction;
29

c. an award to Plaintiffs of their costs and litigation expenses to the extent permitted

by law; and

d. all other relief that the Court deems just and proper.

Dated: November 5, 2004

Respectfully submitted, TEXAS RIOGRANDE LEGAL AID, INC.
~~
en E. Rodriguez (TX Bar No. 14417400) J me W. Wesevich (TX Bar No. 21193250) 1331 Texas Avenue EI Paso, Texas 79901 (915) 585-5100 Fax: (915) 544-3789 Attorneys for Plaintiffs

D. Michael Dale (OR Bar No. 77150) Texas RioGrande Legal Aid, Inc. 1331 Texas Avenue EI Paso, Texas 79901 (915) 585-5100 Michael T. Kirkpatrick (DC Bar No. 486293) Public Citizen Litigation Group 1600 20th Street, N.W. Washington, D.C. 20009 (202) 588-1000 Of Counsel to Plaintiffs

CERTIFICATE OF SERVICE
I hereby certify that I caused a true and correct copy of the foregoing document to be served upon the following counsel of record instantly by electronic mail on November 5,2004:
Alexandra Tsiros Office of the Solicitor U.S. Dept. of Labor 200 Constitution Ave., N.W., Rm. N-2564 Washington, D.C. 20210

30

 L\ THE F,\ITED STATI,S DISTRICT COURT FOR THE WESTER,\ DISTRICT OF TEXAS
EL PASO DlVISIO,\

ISOCIAC/()\ 1)1:' TRAHU1f)()RL)'
"r, FflU\ITRf/OS. CI
P!ailltiff~:
\ .
"r, S DI'I',\RT\:ll,NT OF L\1lOR. ('I
DelCndan1s.

Civil Action I\os. LP-()4-(' A -400- F\:l and EP-02-CV-13 1-1\:1

PLAi'\T1FFS' L'\OPPOSED VIOTlO,\ TO DISVIISS

.·\11 parties to both of the above cases have executed the attached Settlement Agreement and exhibits. which are Bates Stamped "ATF Setticmem" Pages 1-62. Pursuant to the Agreement and Fu), R, elv. j', 41(a)(2). all Plaimiffs in both cases hereby move I(l!' immediate

dismissal oral! cbims in both of the above cases \\,-'Ith prejudice. All parties have agrccd to this

Court's retention orjurisdiction for the sole purpose of cni;xcing the AgrcClllCnl. BeHne

cnnJrccmcnl jurisdiction is effective. ho\vcycr, it must be explicitly reserved in the order or

dismissal ilsdf. Kok/W!l(,11 1'. Guardian Lij'e illS. Co., 5 j 1 L.S. 375, 39S (1994), The attached

pn)poscd order complies with the Agreement. Kokkolll!!1. and Rule 41 (a)(2).

Finally, Plaintiffs express their gratitude to the Court f()r its careful management of these

difficult cases.

Respectlllily submitted.
TEXAS RIOCJRAl\ LEGAL AID. INC.

n;,tted: December 29,2005

iTX Bar '\0, Jcrorne \\/ \\!csevich j 33] Texas A vcnue
Fl Paso. Texas 79{)Ol (915) 5xS-SIOO Fax: (915) "44-3 7 X9 :\tlorneys ror Plaintiff~

CERTIFICATE OF SERYlCE

1 cerui~; thal ! caused a true and correct copy oCtile above document and attach!ncnts to

he sened upon all cmmsc! ofrccurd

on Decenlbcr 29,2005.

\Vcscvich

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

ASOCIACIÓN DE TRABAJADORES

§

FRONTERIZOS, et al.,

§

Plaintiffs;

§

§

v.

§

§

U.S. DEPARTMENT OF LABOR, et al., §

Defendants.

§

Civil Action Nos. EP-04-CA-400-FM and EP-02-CV-131-FM

FINAL ORDER OF DISMISSAL

Upon considering Plaintiffs’ Motion to Dismiss filed herein, the Court now FINDS: (1) all plaintiffs to both of the above cases have agreed to dismiss all of their claims against all parties in both cases with prejudice; (2) all parties have agreed that this Court will retain jurisdiction for the sole purpose of enforcing the Settlement Agreement that Plaintiffs attached to their Motion to Dismiss; (3) no cross-claims or counter-claims are pending in either of the above cases; (4) no Rule 23 class certification has been requested or approved in the above cases; and (5) no Rule 66 receiver has been requested or appointed in either of the above cases.
THE COURT THEREFORE ORDERS: (1) all claims in both of the above cases are dismissed with prejudice; (2) this Court retains jurisdiction for the sole purpose of enforcing the terms of the Settlement Agreement attached to Plaintiffs’ Motion to Dismiss; (3) the clerk shall file this order in both of the above-numbered cases.
SO ORDERED THIS ________________ DAY OF DECEMBER, 2005.

____________________________ Hon. Frank Montalvo United States District Judge

ATF Settlement Page 1
SETTLEMENT AGREEMENT
This Settlement Agreement (“Agreement”) is entered into by and between the Parties to the lawsuits styled Asociación de Trabajadores Fronterizos, et al. v. Cassie Carlson Reed, et al., Cause No: EP-02-CA-0131 (FM) pending in the United States District Court for the Western District of Texas, El Paso Division and Asociación de Trabajadores Fronterizos, et al. v. United States Department of Labor, Cause No: EP-04CA-0400 (FM) pending in the United States District Court for the Western District of Texas, El Paso Division (hereinafter, both cases collectively referred to as the “Cases”).
Now therefore, in consideration of the mutual agreements and obligations set forth herein, the Parties agree as follows:
Section 1: The Parties
1.1 Plaintiffs. For purposes of this Agreement, the term “Plaintiffs” refers to and includes the Asociación de Trabajadores Fronterizos (“ATF”), Jose De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, and Marisela Rodriguez.
1.2 United States Department of Labor. For purposes of this Agreement, the term “DOL” refers to and includes the United States Department of Labor, the Secretary of Labor, and all official decision-makers of the United States Department of Labor.
1.3 Texas Workforce Commission. For purposes of this Agreement, the term “TWC” refers to and includes the Texas Workforce Commission, its three commissioners, its executive director, and all official decision-makers of the Texas Workforce Commission.
1.4 Upper Rio Grande Workforce Development Board. For purposes of this Agreement, the term “Workforce Board” refers to and includes the Upper Rio Grande Workforce Development Board, Inc. d/b/a Upper Rio Grande @ Work, its directors, officers, chief executive officer, employees, attorneys, agents and insurers.
1.5 Defendants. For purposes of this Agreement, the term “Defendants” collectively refers to and includes the DOL, TWC and Workforce Board.
1.6 Parties. For purposes of this Agreement, the term “Parties” collectively refers to and includes the Plaintiffs, DOL, TWC and Workforce Board.
Section 2: Terms of Settlement
2.1 Purpose. The purpose of this Agreement is to forever and completely resolve all claims and disputes pending between the Parties in the Cases.
2.2. Dismissal of the Cases with Prejudice. Plaintiffs, in consideration of the commitments of Defendants contained herein, agree to immediately move to dismiss all claims in the Cases with prejudice. The Parties agree that the trial court retains jurisdiction for the sole purpose of enforcing the terms of this Agreement.

ATF Settlement Page 2
2.3 Defendants’ Commitment to Fund and Administer an LEP Project in the El Paso Area. The Defendants agree to fund and administer a project for limited English proficient trade-certified displaced workers (“LEP Participants”) on the following terms:
2.3.1 Establishment of the LEP Project. The DOL and TWC agree to make available through the Workforce Board a total sum of $6.0 million in new program funds that may be obligated at any time over a two-year period for an LEP project (hereinafter the “LEP Project”).
2.3.2 Purpose. The purpose of the LEP Project is to demonstrate that training can enable LEP workers to enter good jobs in El Paso when clear training goals are established at the outset, necessary resources are available, duallanguage training is emphasized, and training is coordinated with careful individual assessments and other services to ensure that participants are prepared to successfully undertake training. The parties will work in good faith to administer the LEP Project consistent with this purpose. The parties affirm that successful implementation of the LEP Project will depend on the ongoing participation and cooperation of the parties to this agreement.
2.3.3 LEP Project Funding Dedicated for Use in the El Paso Area. DOL and TWC affirm that this $6.0 million in program funding (hereinafter the “LEP Project Funding”) would not have otherwise been provided to the Upper Rio Grande Workforce Development Area (the “El Paso Area”), in the absence of this Agreement. These funds are the combined resources of TWC’s Workforce Investment Act Dislocated Worker funds ($1.5 million in Dislocated Worker Additional Assistance Funds), TWC’s federal Trade funds ($1.0 million), and DOL Workforce Investment Act ($3.5 million) funding under a National Emergency Grant.
2.3.4 Trade Funding from TWC. As part of the $6.0 million committed to the LEP Project Funding, the TWC will make available $1.0 million in Trade Adjustment Act (“TAA”) funds to the El Paso Area (the “Trade LEP Project Funding”). The Trade LEP Project Funding will be available to pay training costs of any Eligible LEP Participant who remains eligible for Trade Act funded training. The Parties agree that the Trade LEP Project Funding will be spent whenever possible for each Eligible LEP Participant before other LEP Project Funds are available for the same Eligible LEP Participant, in accordance with Trade Act statute, rules and regulations.
2.3.5 Commencement Date for LEP Project Funding. The LEP Project Funding and Trade LEP Project Funding will be made available in the El Paso Area. Funding provided by the TWC will be available by January 1, 2006, with the LEP Project to commence at a reasonable time thereafter. Funds available from the DOL NEG will be made available consistent with the terms of this Agreement.
2

ATF Settlement Page 3
2.3.6 La Mujer Outreach Training Contract. The Workforce Board will, from LEP Project Funding, award a sole-source two-year contract to La Mujer Obrera to provide $100,000 in outreach and training services to the Workforce Board and its one-stop career center operator(s) (the “La Mujer Outreach and Training Contract”). The La Mujer Outreach and Training Contract will include at least $25,000 for outreach services during the enrollment window for participants to enroll in the LEP Project. The remainder of the La Mujer Outreach and Training Contract funds will be dedicated to training of Workforce Board staff and the staff of its contractors by La Mujer Obrera on orientation, assessment, career counseling, and training referral of LEP participants by caseworkers in the El Paso Area. DOL and TWC approve of the sole-sourcing of the La Mujer Outreach and Training Contract by the Workforce Board. The Workforce Board may provide additional case manager training from the LEP Project Funding, either through La Mujer Obrera or other contractors/sources from available administrative funding.
2.3.7 Eligibility. The Workforce Board, TWC, Plaintiffs, and La Mujer Obrera (pursuant to the previous paragraph) will work together to identify and conduct outreach efforts to locate eligible LEP Participants. Eligibility to participate in the LEP Project will be limited to individuals (“Eligible LEP Participants”) who meet all of the following criteria:
(1) limited in English proficiency; (2) certified as eligible to apply for TAA after January 1, 1997 and prior
to July 1, 2004; (3) began Trade Act training in El Paso, but did not complete a
vocational training program for any reason; (4) not currently eligible for Trade Readjustment Allowances benefits
outside the LEP Project; and (5) apply for participation in the LEP Project between May 17, 2006
and August 17, 2006, provided that the five individual plaintiffs named in the Cases may apply for participation beforehand.
2.3.8 Available Training Courses in the LEP Project. The training courses available as part of the LEP Project ("Approved Training Courses") shall include: (a) vocational training courses that will provide LEP workers with the training to be job-ready for occupations that appear on the Workforce Board’s Demand or Targeted Occupation Lists; (b) customized training permitted under the statute, rules and regulations of the Trade Act and/or WIA, in cases where an LEP Participant has a bona fide job offer that requires training for a position that is not listed on the Workforce Board’s Demand or Targeted Occupation Lists (in such cases, the training will be considered and treated as “customized training” under the applicable statute, rules and regulations); (c) on-the-job training (“OJT”) opportunities permitted under the statute, rules and regulations of the
3

ATF Settlement Page 4

Trade Act and/or WIA; and (d) remedial education, including ESL, ABE, GED, basic computer skills, the preparedness training described in paragraph 2.5.3 below, and similar courses, only to the extent necessary to enable a worker to complete specific vocational or OJT training, or when an assessment shows that remedial education is all that a participant needs to form a complete skill set needed for a specific target occupation. Approved Training Courses will be offered in dual-language format, as available. Approved Training Courses can be integrated with an OJT training, as available. Individuals enrolled and maintaining satisfactory attendance and educational progression in an Approved Training Course will not be required to leave training to accept a job offer.

2.3.9 Needs Related Payments. To the extent that OJT is not available, then Eligible LEP Participants may receive needs related payments (“NRPs”) and support services that will be funded under this agreement on the following terms:

2.3.9.1

The weekly NRP amount will be set at the

individual’s weekly benefit amount as determined by applicable law.

2.3.9.2

In order to receive NRPs, an individual must be

enrolled in an Approved Training Course as defined by Section 2.3.8

above.

2.3.9.3

Payment of NRPs will not extend beyond the

duration of the individual’s selected training course.

2.3.9.4

Individuals who do not maintain acceptable

attendance in approved vocational training courses will immediately lose

eligibility for NRPs, and the NRPs will immediately cease. The

determination as to whether there is unacceptable attendance will be made

by the Workforce Board. WIA governs eligibility and procedures of

appeals.

2.3.9.5

Individuals enrolled in approved vocational training

courses must demonstrate that they are educationally progressing at a pace

to successfully complete the course in the time scheduled for the

vocational training; individuals not progressing at an acceptable

educationally improving rate will be dropped from the vocational training

and lose eligibility for NRP, and the NRPs will immediately cease, but

only after it has been determined by the Workforce Board that: (a)

insufficient progress is being made; and (b) reasonable efforts have been

taken to improve the insufficient progress. The determination as to

whether an individual is not progressing at an acceptable educationally

improving rate will be made by the Workforce Board. WIA governs

eligibility and procedures of appeals.

4

ATF Settlement Page 5

2.3.10.

Establishment of Individual Goals for All LEP Project

Participants. Prior to commencement of training, an Individual Employment

Plan (“IEP”) will be established for all LEP Participants who enroll in the LEP

Project. The IEP will include clearly written training goals that are established

prior to the commencement of training and take into consideration the availability

of necessary resources to train LEP Participants. The IEP will emphasize the use

of dual-language training and/or OJT to the maximum extent possible for each

LEP Participant. The Workforce Board will ensure ongoing and careful attention

to the IEP as the LEP Participant progresses through his or her training.

2.3.11 Termination of LEP Project Benefits for Participant Noncompliance. Individuals who are dropped from an Approved Training Course for either poor attendance or failure to educationally progress will lose all eligibility for benefits in the LEP Project.

2.3.12 Cutoff of New Participants Upon Obligation of LEP Project Funding. Upon the obligation of all of the LEP Project Funding, regardless of the number of Eligible LEP Participants seeking training in the LEP Project, no further payments or benefits will be paid to individuals seeking to enroll after the time it is determined by the Workforce Board that all LEP Project Funding has been obligated. LEP Participants who are still eligible to receive available Workforce Investment Act funds may apply with the Workforce Board.

2.4 DOL’s Additional Commitments. In consideration of the agreement of Plaintiffs to dismiss the Cases with prejudice, and in addition to its other commitments described herein, DOL agrees to the following:

2.4.1 DOL will, within 30 days of the execution of this Agreement, issue the Training and Employment Guidance Letter that is attached as Exhibit A to this Agreement.

2.4.2 DOL will, within 30 days of the execution of this Agreement, issue the letter to Plaintiffs’ counsel that is attached as Exhibit B to this Agreement.

2.4.3 In addition to other funds to be provided by DOL under this Agreement, DOL will, within 30 days of the execution of this Agreement, pay Texas RioGrande Legal Aid $30,000 in costs incurred by it in connection with the Cases.

2.5 TWC’s Additional Commitments. In consideration of the agreement of Plaintiffs to dismiss the Cases with prejudice, and in addition to its other commitments described herein, TWC agrees to the following:

5

ATF Settlement Page 6
2.5.1 TWC will, within 30 days of the execution of this Agreement, formally issue and implement the Trade Policy Guide revisions that are attached as Exhibit C to this Agreement.
2.5.2 TWC agrees, within 30 days of the execution of this Agreement, to publicly issue a request for proposal (“RFP”) for a $200,000 contract to be awarded to a qualified person or entity to provide expertise on the needs of LEP trade-affected workers and who has significant experience working with LEP trade-affected workers (“LEP Handbook Service Improvement Contract”). TWC further agrees to award the contract to a bidder within 90 days after issuance of the RFP. The LEP Handbook Service Improvement Contract will require the successful bidder to provide and/or deliver drafts within six months, and within one year, the following final products: (a) a completed handbook for workforce system caseworkers on the best practices for intake and counseling of LEP tradeaffected workers, (b) a technical assistance guide on the orientation of female displaced workers with regard to opportunities in occupations that are not traditionally held or sought by women, (c) recommended best practices for local workforce development boards to assess of the availability and quality of bilingual vocational courses, and (d) development of a technical assistance guide to enable Boards to select an assessment tool for use with LEP displaced workers. The RFP for the LEP Handbook Service Improvement Contract will be evaluated and issued in accordance with all applicable procurement laws and regulations.
2.5.3 TWC agrees, within 30 days of the execution of this Agreement, to make $300,000 in funding available to the Workforce Board with the requirement that the Workforce Board promptly issue an RFP for a $300,000 contract to be awarded to a qualified person or entity to provide preparedness training to the LEP Participants enrolled in the LEP Project (“LEP Preparedness Training Contract”). WDB will award the contract to a bidder within 90 days of RFP issuance. The LEP Preparedness Training Contract will require the successful bidder to provide and/or deliver to all individuals enrolled in the LEP Project: (a) education about how to build effective study skills in a classroom environment;; (b) advise on available resources outside the training and employment network to remove barriers to successful completion of training; and (c) training through peer-to-peer mentoring and leadership skills development. The RFP for the LEP Preparedness Training Contract will be evaluated and issued in accordance with all applicable procurement laws and regulations.
2.6 Workforce Board’s Additional Commitments. In consideration of the agreement of Plaintiffs to dismiss the Cases with prejudice, and in addition to its other commitments described herein, the Workforce Board agrees to the following:
2.6.1 The Workforce Board will require its contractors to create a special LEP Unit in the workforce centers to assist LEP Participants with their special needs in receiving an individualized assessment and obtaining valuable job
6

ATF Settlement Page 7
retraining. The LEP Unit will receive training in providing orientation, individualized assessment and career counseling of LEP participants.
2.6.2 The Workforce Board will empanel an LEP Committee consisting of at least one person appointed by the Plaintiffs, with the LEP Committee to regularly meet to advise the LEP Unit and follow up on any issues related to the LEP Project or this Agreement.
2.6.3 The Workforce Board shall ensure that ATF has prompt and free access to a paper or electronic copy of documents concerning each individual LEP Project Participant who provides ATF with a signed, unnotarized release. The release shall include identification of the specific documents being requested, each specific purpose for which the documents will be used by ATF, and ATF’s assurance to continue safeguarding the privacy of such documents. To obtain access to documents not identified in the aforementioned release, any requestor shall comply with the Texas Public Information Act and other applicable law.
Section 3: Miscellaneous
3.1 No Admissions of Liability or Wrongdoing. The Parties neither admit any liability nor wrongdoing as part of this Agreement, but represent that they are merely entering into this Agreement in order to avoid the time, cost, expense and risks associated with disputing or litigating the Cases.
3.2 Entire Agreement. It is understood and agreed that the terms of this Agreement constitute the entire understanding and agreement between the parties regarding the Cases, and may not be changed or modified in any way except in writing signed by authorized representatives of the parties.
3.3. Savings Clause. If, for any reason, any provision of this Agreement is held invalid, either in whole or in part, such invalidity shall not affect any other provision of this Agreement not held to be invalid and each such other provision shall continue in full force and effect.
3.4 No Waiver of Sovereign Immunity. In consideration of this resolution, all parties understand that it is the Defendants’ intent to preserve their sovereign immunity to the fullest extent allowed by law, except as provided herein. The Workforce Board intends to waive its sovereign immunity only in respect to the actual settlement agreement and reserves its sovereign immunity for any pending or future contracts or agreements between the parties.
3.5. Litigation Fees and Costs. Except as provided in section 2.4.3 above, each party will be responsible for their own attorney fees and costs associated with the Cases.
7

3.6 Confidentiality Pending a Mutual Media Announcement of the Agreement and LEP Project. The Parties agree that this Agreement is confidential, to the extent pennitted by state and federal law, until it becomes a final and fully executed agreement. The parties agree not to disclose the terms of this Agreement until it becomes final, except as may be required by the Freedom ofInformation Act, the Texas Public Information Act, and/or any other state or federal open government law. All terms of this Agreement are void if any term is leaked to the media before the Agreement becomes a final and fully executed agreement, except as identified above in response to a proper request under the Texas Public Information Act or other state or federal open government law. Plaintiffs, TWC and the Workforce Board will participate in an appropriate media/press event to announce this Agreement and the LEP Project. DOL may elect to participate in such appropriate media/press event. Any party remains free to issue its own press release.

ATF Settlement Page 8

Reviewed and agreed to this __ day of December, 2005:

Reviewed and agreed to this __ day of December, 2005:

Asociaci6n de Trabajadores Fronterizos

Upper Rio Grande Workforce Development Board, Inc.

By: Title:

Guillermo Glenn Authorized Representative Asociaci6n de Trabajadores Fronterizos

By: Title:

Charles C. High, Jr. Chairman, Board of Directors Upper Rio Grande Workforce Development Board

Reviewed and agreed to this _ _ day of December, 2005:
United States Department of Labor

Reviewed and agreed to this __ day of December, 2005:
Texas Workforce Commission

By: Title:

Reviewed and agreed to this ~t\Iay of December 2005:

Reviewed and agreed to this __ day of December, 2005:

The following individual Plaintiffs affirm that they have read and reviewed this Agreement, or have had all of its terms it-explained to them in a language they understand; that they are 18 years of age or older and of sound mind; that they have voluntarily entered into this Agreement, that they understand they are dismissing their

8

ATF Settiernent Page 9

3.6 Confidentiality Pendine: a Mutual Media Announcement of tbe Agreement and LEP Project. The Parties agree that this Agreement is confidential, to the extent permitted by state and federal taw, until it becomes a tinai and fully executed agreement. The parties agree not to disclose the terms of this Agreement until it becomes tina!, except as may be required by the Freedom ofInformation Act, the Texas Public Infomlation Act, andjor any other state or federal open government law. All terms of this Agreement are void if any tenn is leaked to the media before the Agreement becomes a tinal and fully executed agreement, except as identified above in response to a proper request under the Texas Public Information Act or other state or federal open government law. Plamtiffs, TWC and the Workforce Board will participate in an appropriate mediaJpress event to armounce this Agreement and the LEP Project. DOL may elect to participate in such appropriate media/press event Any party remains free to issue its own press release.

Reviewed and agreed to this day of December, 2005:

Reviewed and agreed to this (~ 7day of December, 2005:

Asociacion de Trabajadores Fronterizos

By: Title:

Guillermo Glenn Authorized Representative Asociaci6n de Trabajadores Fronterizos

Upper Rio Grande Workforce

Development Board, Inc,

(l?v / //. // ijfg( By: Charles C.

?:"
If.

/ fl ;"r.ln:;.Z'l~/' \·/c·

Title: Chairman, Board of Directors .'

Upper Rio Grande

Workforce Development Board

Reviewed and agreed to this ......_ day of December, 2005
Lnited States Department of Labor

Reviewed and agreed to this _ _ day of December, 2005:
Texas Workforce Commission

Title:

Reviewed and agreed to this _ day of December 2005:

Reviewed and agreed to this ~ day of December, 2005:

The following individual Plaintiffs affirm that they have read and reviewed this Agreement, or have had aU of its tenns it-explained to them in a language they understand: that they are 18 years of age or older and of sound mind; that they have voluntarily entered into this Agreement, that they understand they are dismissing their

8

3.6 Confidentiality Pending a Mutual Media Announcement of the

ATF Settlement Page 10

Agreement and LEP Project. The Parties agree that this Agreement is confidential, to

the extent pemlitted by state and federal law, until it becomes a final and fully executed

agreement. The parties agree not to disclose the tenns of this Agreement until it becomes

final, except as may be required by the Freedom ofInfonnation Act, the Texas Public

Infonnation Act, and/or any other state or federal open government Jaw. All tenns of this

Agreement are void if any tenn is leaked to the media before the Agreement becomes a

final and fully executed agreement, except as identified above in response to a proper

request under the Texas Public Infonnation Act or other state or federal open government

law. Plaintiffs, TWC and the Workforce Board will participate in an appropriate

media/press event to announce this Agreement and the LEP Project. DOL may elect to

participate in such appropriate media/press event. Any party remains free to issue its

own press release.

Reviewed and agreed to this .:t '2.. day of December, 2005:

Reviewed and agreed to this __ day of December, 2005:

Asociacion de Trabajadores
F~~»~
~~ Guillenno Glenn
Title: Authorized Representative Asociacion de Trabajadores Fronterizos

Upper Rio Grande Workforce Development Board, Inc.
By: Charles C. High, Jr. Title: Chainnan, Board of Directors
Upper Rio Grande Workforce Development Board

Reviewed and agreed to this __ day of December, 2005:
United States Department of Labor

Reviewed and agreed to this __ day of December, 2005:
Texas Workforce Commission

By: Title:

By: Title:

Reviewed and agreed to this __ day of December 2005:

Reviewed and agreed to this __ day of December, 2005:

The following individual Plaintiffs affirm that they have read and reviewed this Agreement, or have had all of its tenns it-explained to them in a language they understand; that they are 18 years of age or older and of sound mind; that they have voluntarily entered into this Agreement, that they understand they are dismissing their

8

ATF Settlement Page 11

pending legal claims against the Defendants by executing this Agreement, and that they are satisfied with the tenns of settlement reached in this Agreement.

Reviewed and agreed to this
;;b- day of December, 2005:

Reviewed and agreed to this
;:'1- day of December, 2005:

.Jose De La Cruz

Sandra Mora

Reviewed and agreed to this ~ day of December, 2005:

Reviewed and agreed to this
~ day of December, 2005:

Reviewed and agreed to this day of December, 2005:
_MariS~!a Rodri~z ~
~~It~ By; Marisela Rodr:;ez

'By: Soledad Renteria

9

ATF Settlement Page 12

EXHIBIT A

EMPLOYMENT AND TRAINING ADMINISTRATION ADVISORY SYSTEM
U.S. DEPARTMENT OF LABOR Washington, D.C. 20210

CLASSIFICATION
TAA/NAFTA-TAA
CORRESPONDENCE SYMBOL
DATE

TRAINING AND EMPLOYMENT GUIDANCE LETTER NO.

TO:

ALL STATE WORKFORCE AGENCIES

ALL STATE WORKFORCE LIAISONS

ALL STATE TRADE COORDINATORS

FROM:

EMILY STOVER DeROCCO Assistant Secretary

SUBJECT:

Serving Participants under the Trade Adjustment Assistance (TAA) and North American Free Trade Agreement Transitional Adjustment Assistance (NAFTA-TAA) Programs

l. Purpose. To clarify the Department’s existing policy on serving participants, including those with limited English proficiency, under the TAA and NAFTA-TAA programs.

2. References. Trade Act of 1974 (Pub. L. 93-619), as amended; Trade Act of 2002 (Pub. L. 107-210); GAL 15-90, "Operating Instructions for Implementing the Omnibus Trade and Competitiveness Act of 1988 Amendments to the Trade Adjustment Assistance Program, Including Significant Changes Affecting Basic and Additional TRA Entitlement;" TEGL 11-02, "Operating Instructions for Implementing the Amendments to the Trade Act of 1974 Enacted by the Trade Act of 2002; " TEGL 26-02, "Publication of Revised Guidance Regarding the Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient (LEP) Persons."

3. Background. Questions have arisen concerning how training is provided for workers, including those with limited English proficiency, under the TAA and NAFTA-TAA programs. This TEGL is intended to clarify the Department’s existing policies related to the selection and approval of

RESCISSIONS
None

EXPIRATION DATE:
Continuing

ATF Settlement Page 13
-2-
training programs for workers, including those with limited English proficiency.
4. Training. Training is approved under the TAA and NAFTA-TAA programs for adversely affected workers when all of the criteria for training approval at 20 CFR 617.22 are met. Under 20 CFR 617.22(a)(1) training is only available to workers for whom there is no suitable employment available. Suitable employment is defined for this criterion as "work of a substantially equal or higher skill level than the worker’s past adversely affected employment, and wages for such work at not less than 80 percent of the worker’s average weekly wage."
a. Training goal. The goal of the program is to return workers to "suitable employment" at work of a substantially equal or higher skill level than the worker’s past adversely affected employment, and wages for such work at not less than 80 percent of the worker’s average weekly wage. This is a worthy goal.
Accordingly, state agencies must make every effort to achieve this goal by providing an appropriate combination of reemployment services, training, and job search and relocation allowances where there are suitable employment opportunities that are feasible and appropriate for the worker to pursue. These efforts must include the appropriate training of case management workers. However, there is no guarantee that such suitable employment opportunities will be available to every worker, or that training targeted to an occupation where there is a reasonable expectation of suitable employment will actually result in employment at a wage of at least 80 percent of the participant’s previous wage.
Section 617.22(a)(3) of 20 CFR explains that "a reasonable expectation of employment" does not require that employment opportunities for a worker be available, or offered, immediately upon the completion of training. There only must be a reasonable expectation of employment following training and, under 20 CFR 617.22(a)(2), the training must benefit the worker. In recognition of the limitations of local labor markets and the limitations on the training that is available under the TAA and NAFTA-TAA programs, the Department encourages states to use all available resources to achieve the best possible outcome for the individual worker.
Workers who qualify for Trade Act training must be told of the 80% wage replacement goal and provided general information about

ATF Settlement Page 14
-3-
available training programs, including access to labor market information, wage replacement information and web sites which may inform participants of the types of training available. Case files must contain sufficient documentation to demonstrate that all these requirements have been satisfied.
By the above, the Department encourages states to use all available resources to achieve the best possible outcome for the individual worker. Thus, as long as the state agency has determined that the approved training meets all requirements of the Trade Act and regulations, including the requirement that the training be available at a reasonable cost, a worker has a right to choose to enroll in higher cost training for an occupation that is more likely to meet the wage replacement goal of the Trade Act even when lower cost training in another occupation that does not meet this goal is also available to the worker.
However, none of the six training approval criteria limit the approval of training to training programs which result only in suitable employment. Such a requirement would have the effect of requiring training to be denied where a worker could not reasonably be assured of an offer of a job providing an 80% wage replacement upon completion of training. Further, it is not always feasible to train workers for suitable employment. There may be no suitable employment available for a worker or any employment that would meet the definition of suitable employment may require more education or experience than may be provided under the TAA or NAFTA-TAA programs. Therefore, the Department recognizes that a return to suitable employment is only a goal, and not a requirement for approval of training.
b. Training completeness. Under 20 CFR 617.22(a)(2), no Trade Act training program may be approved unless it will render a "worker job-ready." Therefore, any training program approved must be a program that provides the skills necessary to return the participant to work when the former employment is no longer available. Before any training is approved, each worker’s case file must identify what occupation the worker is being trained to enter.
In the case of participants with limited English proficiency, this may be achieved through (1) a contextualized training program which simultaneously provides the necessary occupational skills and remedial education (basic skills and/or English language skills) in an

ATF Settlement Page 15
-4-
integrated curriculum; (2) a combination of remedial education (including basic education and English language skills) and occupational skills training; or (3) in rare instances, through a standalone remedial education program if the individual possesses marketable occupation skills and only needs basic and/or English language skills to gain employment. As the Department stated when it published 20 CFR 617.22, "training designed to enhance the employability of individuals by upgrading basic skills, through remedial education or English-as-second-language courses, are considered as remedial education approvable under § 617.22(a) if all the approval criteria in that section are met. A training program of remedial education only may now be approved for an individual if he or she possesses occupational skills and needs only remedial education to obtain employment. Ordinarily, remedial education is made part of a broader skills training program as defined in § 617.22(f) (3)." Therefore, stand alone remedial education may only be approved where an assessment indicates that the individual, but for remedial education, possesses marketable job skills.
c. On-the-job training. The TAA regulations, 20 CFR 617.23(c)(1), require each state agency to give priority to the use of on-the-job training (OJT). Thus, state agencies must take reasonable actions to develop on-the-job training opportunities for trade-affected workers by promoting the benefits of OJT under the TAA and NAFTA-TAA programs among local employers, and to present OJT to trade-affected workers as a first option, if available.
d. Informed choice. State agencies must provide information, as necessary, to each trade-affected worker to enable that worker to make an informed choice among approvable training options, regardless of the worker’s language or educational abilities. Informed choice must be based upon a completed assessment of pre-training skills that is included in each worker’s case file. Each time a worker’s education and language abilities are limited, careful case management at the training selection and approval stages, and while training is underway, are essential to successful completion of training.
e. Training program development. Under 20 C.F.R. 617.22(a)(4), approved TAA training must be reasonably available from either governmental agencies, education providers or private training providers. It is not an appropriate use of Trade Act funds, training or administrative, to pay for the development of a training provider or program, curriculum development, teacher training or physical plant

ATF Settlement Page 16
-5-
needs. A training provider can recoup such costs as part of a reasonable tuition payment.
5. Action. States should make all appropriate staff aware of the contents of this TEGL and take appropriate measures to ensure appropriate provision of TAA and NAFTA-TAA services to individuals with limited English proficiency.
6. Inquiries. Inquiries regarding these instructions should be directed to the appropriate Regional Office.

ATF Settlement Page 17
EXHIBIT B
Jerome Wesevich Carmen Rodriquez Texas Rio Grande Legal Aid, Inc. 1331 Texas Ave. El Paso, TX 79901
Re: Trade Adjustment Assistance Notice of Proposed Rulemaking
Dear Mr. Wesevich and Ms. Rodriquez:
With respect the Settlement Agreement in the ATF cases in El Paso, on July 7, 2005 you requested that the TAA Notice of Proposed Rulemaking (NPRM) explicitly seek comments on the following issues:
(1) what actions must state agencies take during the training approval process to pursue the goal of Trade Act training;
(2) what actions must state agencies take to assure that Trade Act training is provided on the job insofar as possible;
(3) what actions must state agencies take to identify and develop training opportunities that are necessary to meet the needs of trade-dislocated workers, but are not available within a trade-affected community;
(4) what actions must state agencies take to ensure that workers make informed choices among training options;
(5) what additional rules for distributing Trade Act training appropriations among state agencies are appropriate to pursue both the purpose of Trade Act training and uniform benefits as stated in 20 C.F.R. § 617.52; and
(6) what additional rules are needed to preserve Trade Act benefits for workers when delays in enrollment are due to training program availability, temporary funding delays, or other administrative problems that are outside the worker’s control
At this time, to comply with your request would unduly prolong the process for the publication of the Notice of Proposed Rulemaking (NPRM). As you are aware, all parties will be given the opportunity to comment on the NPRM which will have to be addressed in the Final Rule.

ATF Settlement Page 18
EXHIBIT C
Exhibit C consists of a revised version of the existing TWC publication entitled Integration of Trade Services for Dislocated Workers: A Comprehensive Guide (called the “Trade Policy Guide” in the Settlement Agreement). Attached is the revised text to appear in the Trade Policy Guide Parts A, B, C, and D, and in the Explanation of Services Form in Part F-400.

ATF Settlement Page 19
Integration of Trade Services for Dislocated Workers: A Comprehensive Guide

Part A: Glossary of Terms and Definitions

ABE ATAA Average Weekly Wage (AWW)
Board COBRA
Core Services

Adult Basic Education
Alternative Trade Adjustment Assistance
One-thirteenth (1/13) of the total wages paid to an individual in the individual’s high quarter. The high quarter for an individual is the quarter in which the total wages paid to the individual were highest among the first four of the last five completed calendar quarters preceding the individual’s last qualifying separation.
Local Workforce Development Board
Consolidated Omnibus Budget Reconciliation Act of 1985. COBRA provides the right to temporary continuation of health coverage at group rates for certain former employees, retirees, spouses, former spouses, and dependent children. Eligible individuals must have lost coverage due to a qualifying event and have been enrolled in their employer’s health plan while working.
WIA services available to the universal population include, but are not limited to: • determinations of eligibility for WIA assistance • outreach and intake • orientation to Texas Workforce Center services • initial assessment of skill levels • support service needs • job search and placement • information on local, regional, and national labor markets, and • information on the 80% wage replacement goal as it pertains to the
demand occupations in the Board area.

Dislocated Worker
DOL ESL ETPS
GED

A worker who has been permanently laid off or has received a notice of termination or layoff from employment, or is employed at a facility at which the employer has made a general announcement that the facility will close.
United States Department of Labor
English as a Second Language
Eligible Training Provider System. A TWC review process that requires training providers to register with the state in order to be eligible to provide services funded by WIA. Training providers must attain ETPS certification with TWC.
General Education Development

Part A: Glossary

December 2005

Page A-1

Integration of Trade Services for Dislocated Workers: A Comprehensive Guide

ATF Settlement Page 20

Glossary of Terms and Definitions (continued)

Group Plan HCTC High Risk Pool
Hourly Wage Impact Date IEP
Intensive Services
Job Location Layoff Long-term Employment NEG

Health coverage sponsored by an employer or employee organization (such as a union) for employees and their eligible dependents.
Health Coverage Tax Credit
High risk pools are subsidized health insurance pools that are organized by some states and offer health insurance to individuals who have been denied health insurance because of a medical condition or whose premiums are rated significantly higher than average due to health status or claims experience. High risk pools can be a form of qualified health coverage for the HCTC if they are deemed state-qualified.
All pay normally earned per hour, including bonuses, tips, gratuities, commissions, and overtime pay.
The date identified in a Trade Adjustment Reform Act of 2002 certification, on which either total or partial separations began or threatened to begin in a firm or subdivision of a firm.
Individual Employment Plan. An intensive service in which Workforce Center staff works with the participant to identify an occupation in demand that meets the 80% wage replacement goal, then develops a plan to address the occupational goal, the appropriate achievement objectives, and the combination of services for an individual to obtain his or her long-term occupational goals. The IEP names the specific occupation to be obtained as well as a training plan that makes the participant “jobready” at the completion of training.
Services that include diagnostic testing and other tools to assess support service needs, and must provide tools to assess skill levels. Other intensive services include individual case management, IEP development, and short-term prevocational skills. Workforce Center staff can provide these services when an individual received at least one core service, and staff determines that the individual needs more intensive services to obtain employment, or to obtain and retain employment that leads to self-sufficiency, or prior to referral to dual-language vocational skills training.
A worker’s physical place of work at the time the worker was separated from a trade-affected employer.
A suspension of, or separation from, employment by a firm for lack of work, initiated by the employer, and expected to be for a definite or indefinite period of no less than seven consecutive days.
Employment lasting at least 150 days.
National Emergency Grant is an additional funding source opportunity that is part of WIA.

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Glossary of Terms and Definitions (continued)

Number of Hours Worked Per Week
PBGC

The usual number of hours of work scheduled per week, including overtime, in whole hour increments (no fractions of hours).
Pension Benefit Guaranty Corporation. This was created on September 2, 1974, when the “Employee Retirement Income Security Act (ERISA) of 1974” was enacted. A defined benefit pension plan that does not have enough money to pay benefits may be terminated if the employer responsible for the plan faces severe financial difficulty, such as bankruptcy, and is unable to maintain the plan. The PBGC then pays pension benefits under the terms of the plan, subject to legal limits, to plan participants and beneficiaries.

Petition Status

• The status of a petition throughout the DOL investigation progress. The status is identified by these terms:
• petition filed • investigation terminated • certified or • not certified.

RRS

Rapid Reemployment Services. Previously WPRS.

SOCRATES

SOCRATES (Standardized Occupational Components for Research and Analysis of Trends in Employment System) is a tool to assist Boards perform a regional labor market analysis. It allows Boards that are conducting WIA planning to generate lists of targeted industries and targeted occupations. It is also excellent for researching regional Texas labor markets and identifying occupational training possibilities or to justify new program submission and approval. The analytical tools and regional narrative reports within SOCRATES follow the planning guidelines issued for targeted industries and occupations and approved by TWC.

State Qualified Health Plan

Health plans that have been qualified by the Texas Department of Insurance (DOI) as meeting the requirements set forth in the Trade Adjustment Reform Act of 2002. A list of these plans will be submitted to the Treasury Department by DOI.

Suitable Employment

With respect to an affected worker, work of a substantially equal or higher skill level than the affected worker’s past employment, with wages of not less than 80 percent of the affected worker’s average weekly wage used to determine whether or not the participant is eligible for trade-funded training.

Supportive Services Services such as transportation, child care, dependent care, and housing that are necessary to enable an individual to participate in activities authorized under WIA.

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Glossary of Terms and Definitions (continued)

TA Bulletin TAA TEGL TRA
TRACER
Training Services
TWC TWIST UI WD Letter Waiver WARN Notice WIA

A Technical Assistance Bulletin distributed to Boards by TWC.
Trade Adjustment Assistance
Training and Employment Guidance Letter. A DOL guidance letter distributed to states.
Trade Readjustment Allowances. Weekly TRA may be payable to eligible workers when they exhaust unemployment benefits. TRA benefits will be paid if an individual is enrolled in a TAA-approved training program or has a waiver of the training requirement. TRA allowances are required for applicants who wish to apply for HCTC.
Texas Rapid Access to Career and Economic Resources is the only fully dynamic labor market information delivery system in Texas backed up by the combined experience of 80 economists.
Under WIA and TAA, training services may include occupational skills training, vocational skills training, dual-language training which provides the necessary vocational skills and remedial education together in an integrated curriculum (also called contextual learning or integrated vocational skills training), or employer-based training such as On-the-Job Training (OJT) and customized training.
Texas Workforce Commission (State)
The Workforce Information System of Texas
Unemployment Insurance
Workforce Development Letter. A guidance letter distributed to Boards by the Workforce Development Division of TWC.
Also known as “Waiver of the Training Requirement,” “Waiver of Training,” or “Training Waiver.”
Worker Adjustment and Retraining Notification
Workforce Investment Act

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Part B: Introduction

Part B-100 — Overview of Guide

B-100.1: Purpose of Guide

The purpose of this guide is to:
• enable the Texas workforce system to fully integrate the Dislocated Worker and Trade programs into the service delivery mix of the Texas Workforce Centers (Workforce Centers) and to assist trade-certified workers in identifying employment that meets the 80% wage replacement goal;

• alert Unemployment Insurance (UI) Tele-Center staff to fully advise trade-affected dislocated workers applying for UI of the work search requirements for Trade Readjustment Allowances (TRA) and refer the workers to Workforce Centers to conduct job search activities;

• assist Local Workforce Development Boards (Boards) and Workforce Center staff members to perform their responsibilities, including Rapid Response and Orientation to Trade services, and issuing waivers of the training requirements as needed as well as identifying appropriate vocational skills training or dual-language training opportunities in demand occupations for LEP participants;

• inform Board and contractor staff of the requirement to coenroll/register Trade-certified dislocated workers into services that address barriers to reemployment;

• clarify the required sequence of services for trade-affected workers, including referral to vocational skills, or duallanguage training in occupations that will allow the participant to meet the goal of 80% wage replacement;

• demonstrate strategies for leveraging state and federal funding sources to maximize services to these workers; and

• emphasize the importance of developing On-the-Job training opportunities for trade-certified workers.

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B-100.2 Objectives

This guide will help readers:
• apply the Workforce Investment Act (WIA) Sequence of Services;
• identify dislocated workers who may be trade-affected;
• describe the necessary components of the Individual Employment Plan (IEP);
• improve referrals to training for LEP participants;
• understand co-enrollment requirements; and
• ensure that trade-affected workers are informed of the wage replacement goal of 80% as part of selection of occupational/vocational skills training .

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Part B-200 — The Trade Program

B-200.1: Goal of the Trade Program

The primary goal of the Trade program is to move trade-affected dislocated workers into suitable employment, new jobs that meet the 80% wage replacement goal, and to do so as quickly and effectively as possible. Recent changes to the federal Trade Act of 1974, as amended (Trade Act), ensure intervention strategies that offer the opportunity for rapid, suitable, and long-term employment for adversely affected workers by aligning the length of training with the availability of income support.

Full integration of employment and training services is accomplished by allowing trade-affected dislocated workers to access all appropriate services in the Workforce Centers, including Labor Market Information, training referrals, case management and follow-up services, to help dislocated workers reenter the workforce.

B-200.2: Trade Act Provisions

The Trade Act of 2002: • consolidates NAFTA-TAA into TAA (dislocated workers
certified for NAFTA-TAA under petitions received before November 4, 2002, continue to receive NAFTA-TAA services as long as their eligibility lasts);
• expands eligibility to secondary worker groups including suppliers and downstream producers;
• extends eligibility to farmer groups certified by the U.S. Department of Agriculture under the TAA for Farmers program;
• requires timeliness of Rapid Response assistance and petition investigation; and
• adds new benefits by establishing other Trade programs such as Health Coverage Tax Credit (HCTC), Alternative Trade Adjustment Assistance (ATAA), and TAA for Farmers.
The changes in the Trade Act offer Boards greater opportunities and flexibility for serving trade-affected dislocated workers.

B-200.3: Trade Act Web Site
Part B: Introduction

For additional information, visit the Trade Act Web site at: http://www.doleta.gov/tradeact/2002act_index.cfm

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Part B–300 — Trade Program Benefits and Strategies

B-300.1: Trade Program Benefits

Several options are available to Workforce Center staff under the Trade program to develop reemployment strategies for eligible trade-affected dislocated workers: The options include:

• HCTC — provides assistance with the payment of premiums for eligible health coverage programs.

• ATAA — alternative benefit for workers who are at least 50 years of age.

• Job Search Allowance — covers expenses incurred in seeking employment outside the normal commuting area.

• Relocation Allowance — provides reimbursement to an individual for approved expenses when relocation is required.

• TRA — provides cash payments after UI benefits are exhausted while an individual is in an approved full-time training program or on a waiver of the training requirement for basic TRA.

• Training, including OJT and Customized Training — for reemployment in another job or career when “suitable employment” is not available. Such training should assist the worker in achieving a wage of 80% of their previous wage.
Note: Part C-400 covers these options in more depth.

B-300.2: Trade Service Strategy

The strategic planning process for each Board shall include the development of local policies for a trade service strategy that coordinates various service approaches to accomplish all of the following:
• assist dislocated workers eligible for Trade benefits to obtain suitable employment as quickly as possible;
• promote the use of WIA core and intensive services to support rapid reattachment to the workforce, where an 80% wage replacement goal is achievable;
• refer participants to pre-vocational and vocational training if suitable employment is not available without training;

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B-300.2: Trade Service Strategy (continued)
B-300.3: General Board Responsibilities
Part B: Introduction

• develop OJT and Customized Training opportunities with employers with jobs in occupations that meet the 80% wage replacement goal for trade-certified workers, including opportunities for workers to supplement OJT with remedial education as necessary before and during OJT;

• provide training that offers dual-language training programs, opportunities, as necessary to assist Limited English Proficient clients in achieving job readiness in a demand or targeted occupation with long-term employment opportunities, and

• assist in job retention and career advancement.

Note: the primary goal of the TAA program is for the Tradecertified worker to be completely job ready at the completion of the training. The 80% wage retention goal should be attained if at all possible. In no case should the Trade-certified worker be denied training or retained on a waiver only because the 80% wage retention goal can not be met. If the Trade-certified worker lacks the entry-level requirements to enter TAA approvable training (see D-200.4 for criteria for approvable training), remedial training to meet the entrance requirements is required. Dual-language training or an OJT combined with remedial education are approvable alternatives.

Board Planning — amend and modify the Board’s strategic plan to incorporate and coordinate the design, policy development, and management of the integration of Trade-funded activities and other funded supportive services as well as addressing plans for meeting the training needs of LEP clients. Boards must work with training providers to ensure that dual-language training is available and included on the Eligible Trainer Provider List. Boards must also make a strong effort to develop OJT opportunities with employers. To help LEP workers access employer-based training, OJT may be preceded and accompanied as necessary by remedial skills training and/or by employer designed classroom training that meet the needs of the employers.

Reporting — ensure that Workforce Center staff document all services in The Workforce Information System of Texas (TWIST), in the IEP, and on a hard copy of the signed Explanation of Services, which ensures that participants are fully informed as to the options for training in demand or targeted occupations as well as whether or not the selected occupation will meet the 80% wage replacement goal. Workforce Center staff retains such documentation in their files. Documentation must be available if there is an appeal.

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Monitoring — ensure the monitoring of program requirements and participant activities. Operating — ensure the implementation of a customer service strategy that: • identifies suitable employment; • issues waivers to training; • provides assessment; • develops an IEP; • refers to training; • manages cases; and • conducts follow-up.

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Part B–400 — Using the Guide

B-400.1: Guide

This guide is a resource to help readers familiarize themselves with the Trade program’s history, purpose, rules, services, and best practices.

Trade information is organized into four parts, plus a glossary and appendices.

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Part C: Pre-Trade Certification

Part C-100 — Trade Petitions and Rapid Response

C-100.1: Trade Petition Process

The first step in the Trade petition process is to determine whether to file a petition. The answers to the following questions may help you decide:

Does the company produce a product?

Did a change in foreign imports cause a decline in sales or production for the company?

Did the company shift production to a foreign country?

Note: “Yes” to any of the above questions could indicate traderelated jobs that have been adversely affected by foreign imports.
When in doubt, file a petition.

Any one of the following entities can file a petition with the United States Department of Labor (DOL):
• A group of at least three workers.
• An official of a labor organization representing the workers.
• An official of the employer or company.
• Designated Texas Workforce Center (Workforce Center) staff or partners.
• Staff with the Texas Workforce Commission (TWC) Dislocated Worker Unit.
DOL conducts an investigation and certifies petitions within 40 days of receiving the petition.

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C-100.1: Trade Petition Process (continued)

Note: During the 40-day certification period, provide core services including Rapid Response orientation, workshops, and initial assessment. Continue with intensive services if the dislocated worker is not job ready.

Petition forms are available in English and Spanish on the Internet at: http://www.doleta.gov/tradeact/petitions.cfm.

C-100.2: Triggers for Rapid Response

Initiate Rapid Response services when you receive a:
• filed Trade petition;
• WARN (Worker Adjustment and Retraining Notification) notice; or
• public announcement of a layoff or closure.

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Part C-200 — Rapid Response Coordinator

C-200.1: Rapid Response Coordinator’s Role

When the layoff has not yet occurred, the local Rapid Response coordinator initiates and schedules Rapid Response services by contacting the employer within 48 hours of notification. The Rapid Response coordinator schedules an on-site management meeting that includes representatives of the employer and affected workers. A union representative is included in the meeting when a union represents workers.

As part of the on-site management meeting, collect the following information:

• Timeline for layoff.

• Number of employees affected.

• Types of positions affected.

• Work shifts involved.

• Space for on-site seminars/workshops.

• Company severance package.

• Security provisions.

• Contracted services.

• Information that assists in determining if filing a Trade petition is appropriate.

As part of the on-site management meeting, share the following information:

• Overview of all Workforce Center services.

• Trade petition process.

• Trade program benefits for employers.

• Trade program benefits for employees.

• Rapid Response team access to employer facilities.

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C-200.1: Rapid Response Coordinator’s Role (continued)

• Employee orientation scheduled around shifts. • Crisis counseling for employees. • Contact information for Rapid Response coordinator.
Note: Early intervention is key to coordinating services with management and the workers subject to layoff.
If the layoff has already occurred, the local Rapid Response coordinator requests a mailing list of affected workers from the employer in order to conduct outreach.

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Part C-300 — Rapid Response Services

C-300.1: Rapid Response Services

Rapid Response is a component of core services. The Local Workforce Development Boards (Boards) must ensure Rapid Response services are provided.

C-300.1.1
Workshops and Seminars

Rapid Response services include workshops and seminars for employees at the work site, including:
• financial management and budgeting;

• labor market information, including a list of area demand occupations with wage information;

• stress management;

• resume writing;

• interviewing skills; and

• job search.

C-300.1.2
Employee Orientation

The employee orientation meeting for potentially trade-affected dislocated workers should include:
• completion of Rapid Response registration and survey;
• orientation to the Trade program—an explanation of the Trade benefits notification process and instructions on what to do if the petition is approved;
• registration for work as required by WorkInTexas.com, TWC’s new job matching and service tracking system for the public labor exchange services;
• distribution of Trade program brochures and related materials;
• time frames for approval of Unemployment Insurance (UI) claims, application for Trade Readjustment Allowances, which may require enrollment in training, and Trade petitions; and
• information on the Health Coverage Tax Credit (HCTC) and Alternative Trade Adjustment Assistance (ATAA).

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C-300.1.2
Employee Orientation (continued)
C-300.1.3
Intake Overview

Note: Some new programs that need to be highlighted are HCTC and ATAA, which are covered in Part D.
The initial intake process collects information about the customer to determine the most effective approach to assist with reentry into the workforce. The more thorough the information collected at the beginning of the process, the better the foundation for coordination of services. This is an early opportunity to ensure that the participant is fully aware of the wages associated with the Board’s demand and targeted occupations, which of these occupations will meet the goal of 80% wage retention of the participant’s previous wage, and what training is required to enable the worker to enter and successfully complete the training for these occupations. Share information regarding the local labor market, available jobs, wage information, and programs and services with the customer during intake. Complete appropriate forms, such as the Explanation of Services.

C-300.1.4
Rapid Response Registration

At the completion of the employee orientation, enter the dislocated worker’s Rapid Response registration information in The Workforce Information System of Texas (TWIST). This creates a TWIST “Intake – Common” record in which Workforce Center staff can add intake information at the Specialized Services Intake Level as it is received. The additional information helps expedite the eligibility for Workforce Investment Act (WIA) Dislocated Worker services as well as the co-enrollment process with the Trade program.
The first service is automatically recorded in TWIST’s Service Tracking based on the Rapid Response registration. This simplifies the data entry process.

C-300.1.5
Petition Inquiry

Petition information is entered into TWIST by state office TWC staff. Upon the entry of the petition information, a TAA Program Detail record is created in TWIST. Board and Workforce Center staff may perform a petition inquiry from TWIST Group Actions by performing a search by petition number or name of company.

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C-300.1.6
Dislocated Worker Service Delivery

Boards may use WIA Dislocated Worker funds to support the design and delivery of services to dislocated workers, including those who are trade affected. The Trade program is a complement to Dislocated Worker services, not a replacement for it.
Note: All potential and certified trade-affected workers are dislocated workers.
Dislocated Worker services begin when:
• a Trade Act petition is filed; or
• a layoff notice is received.
TWC’s Rapid Reemployment Service identifies UI claimants who are likely to exhaust benefits.
WIA funding allocated to the Boards for Dislocated Worker services includes funding for:
• Rapid Response—orientation, workshops, etc.
• Outreach, reemployment assistance, assessment, case management, including development of the Individual Employment Plan (IEP)
• referrals to training
• supportive services
• follow-up services for both trade-affected and non-tradeaffected dislocated workers.
Trade funding for out-of-area job search and relocation remains at the state level but is available to Trade-certified dislocated workers based on the Board’s assessment and referral and the availability of such funds from DOL.
The delivery of these services must flow seamlessly from initiation of Rapid Response services to reemployment, provide an integrated array of services, and allow eligible customers to benefit from activities that are most suitable for their needs.
Note: The Trade Act requires Boards to provide Rapid Response services, core services, and intensive services available under WIA and other federal programs to dislocated workers filing a TAA

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Part C-400 — Core Services

C-400.1: Sequence of Services Structure

Follow the WIA Sequence of Services when serving eligible tradeaffected dislocated workers who request assistance. The sequence is:
Core > Intensive > Training
The Trade Act of 1974, as amended (Trade Act), establishes certain time frames for decisions concerning suitable employment and referrals to training. These timelines affect the participant’s eligibility for trade adjustment allowances. The casemanager must be aware of these deadlines at all times and should note these timelines in TWIST. For example, the trade-certified dislocated worker should remain in core services only until Workforce Center staff determines that no suitable work is available.
All customers (Universal Population) who enter the Workforce Center have access to core services.
• Boards should obtain pre-registration data from customers who receive core services. Use the Specialized Services intake level in TWIST to capture the information. This data collection is strongly encouraged, because it allows TWC and Boards to track the core services provided.
• Boards can use WIA and Employment Services funds to provide core services.

Note: For details regarding documentation requirements, refer to the WIA Guidelines for Determining WIA Eligibility, available at: http://www.twc.state.tx.us/boards/wia/txwia.html.

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C-400.2 Core Services

Core services begin at the Rapid Response orientation. Do not wait for the completion of the petition investigation before you start serving the potentially trade-affected dislocated worker, because the petition investigation may take up to 40 days for DOL to complete. Below are some activities you - must initiate immediately to help the customer:
• Complete Explanation of Services form, which outlines potential program services and benefits.
• Complete waiver of training form, which protects future Trade benefits associated with Trade Readjustment Allowances (TRA) and HCTC.
• Perform an assessment of knowledge, skills, and abilities.
• Identify availability of “suitable employment.”
• Ensure application for TRA is completed by calling a TeleCenter or UI field specialist.
Note: See Appendix F-400 for sample forms.

C-400.2.1
Explanation of Services Form

The Explanation of Services form identifies the potential Trade program services and benefits and also acts as the bona fide application for training. This form is signed by the dislocated worker and retained in the local file.

C-400.2.2
Waiver of the Training Requirement

To be eligible to receive TRA payments, the trade-affected dislocated worker must be enrolled in training or have a waiver of the training requirement. The initial waiver is valid for up to six months, with monthly reviews to ensure that the reason for issuing the waiver is still valid. To protect potential TRA benefits, complete the waiver of training form during:
• the Rapid Response employee orientation; or
• first visit to the Workforce Center.

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C-400.2.2
Waiver of the Training Requirement (continued)

Complete and file the waiver of training form within eight weeks of the petition certification date or within 16 weeks of the qualifying separation, whichever is later (see Part D-400.4).

C-400.2.3 Reasons for Training Waiver

Below are six acceptable reasons to waive the training requirement:
1. Worker subject to recall within six months. This reason is applicable if the worker has a definite recall date that Workforce Center staff has verified with the employer. Enter the scheduled return to work date in the waiver document.
2. Worker possesses marketable skills. This reason is applicable while the worker tests the market for suitable employment, or it appears the worker possesses marketable skills. As with every reason for a waiver, Workforce Center staff must reevaluate it at least every 30 days. The worker is eligible for TRA while conducting a work search as prescribed by state UI regulations.

3. Worker in poor health. This reason is applicable if the worker is unable to attend school or work due to a health problem. Workforce Center staff should issue the waiver to protect future eligibility, although the worker may be disqualified from receiving UI and TRA. Document this in the TWIST Counselor Notes.
4. Retirement. Worker is within two years of retirement in accordance with a private retirement plan or age or Social Security.
5. First available enrollment date is within 60 days. This reason applies when training is available, but when the enrollment date is in the future. For purposes of TRA, the enrollment date is the date on which the worker is considered to be in training. Issue the waiver if the enrollment date is less than 60 days in the future.
6. Training is not available, or is not available at a reasonable cost, or no funds are available under TAA or federal law. This reason applies if guidance has been provided to the Board that all available TAA funding has been exhausted, or if there is no approvable training within the local commuting area.

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C-400.2.4
Initial Assessment

The preliminary assessment of knowledge, skills, and abilities helps identify dislocated workers who possess marketable skills needed by local employers. It may also identify dislocated workers who need additional services at the intensive service level. The initial assessment includes:
• testing of skill levels such as math, reading, and writing to determine grade-level equivalencies;
• evaluating aptitudes, abilities, and supportive service needs;
• identifying transferable skills such as computer, problem solving, time management, and organization;
• assessing English language proficiency (command of the English language);
• identifying knowledge of foreign languages that may help an employer;
• assessing supportive service needs such as child care or transportation; and
• evaluating the need for referral to community resources such as the food bank, clothes closet, housing, or utility assistance.
•Note: Each Board must have assessment tools that are designed for Limited English Proficient (LEP) workers.

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C-400.2.5
Limited English Proficiency
Page C-12

Characteristics of persons who are LEP:
• Do not speak English as their primary language.
• Have a limited ability to read, speak, write, or understand English.
• Native language is not English.
• Live in a family or community environment in which a language other than English is dominant.
Workforce Center staff must take reasonable steps to ensure that LEP customers have access to translators and language-appropriate material describing programs, services, and information.

LEP workers must receive case management services, but it is particularly important at the training selection stage, to ensure that the client meets the TAA goal. So case managers must consider the following when assisting LEP workers in selecting training programs:
• Thorough exploration of the entire range of possible demand or targeted occupations is essential, with particular attention paid to transferable skills and long-term employment goals of each worker.
• OJT can be supplemented with remedial education to enable LEP workers to participate in this preferred form of training.
• Dual-language training programs (defined in Part D-400.3) have proved more effective than other forms of classroom training for LEP workers, so workers should be encouraged to derive as much of their classroom training as possible through Board-approved dual-language training opportunities.
• Enrolling LEP workers in any form of stand-alone remedial education (including without limitation ESL, GED, ABE, and basic computer skills courses) should be avoided unless: (1) assessment indicates that the worker only needs remedial education, and no vocational skills, to become job-ready in an appropriate demand or target occupation; or (2) the stand-alone remedial education is of limited duration and approved in conjunction with dual-language or standard vocational training, and the case manager reasonably expects the worker to complete both the remedial and vocational parts, and be job-ready within the time allowed under TAA.

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C-400.2.6 Suitable Employment

Based on assessment results, Workforce Center staff may conclude that the dislocated worker has the skills for “suitable employment.”
During the initial assessment of the participants the term suitable employment is related to the decision to approve training. If no suitable work is identified and training is required, the goal of such training is to ensure that the occupation meets the goal of 80% wage replacment of the participant’s previous wage. Under the Trade Act, suitable employment means:
• work of equal or higher skill level; and
• pay of at least 80 percent of the average weekly wage of the trade-affected job.
Note: It is important to document whether suitable employment is identified for the trade-affected worker. Document this in the Counselor Notes menu selection of TWIST. The choice of occupational training that will not meet the goal must also be documented.

C-400.2.7
Labor Market Information

If suitable employment is not available, the worker continues through the WIA Sequence of Services.
Use TRACER and SOCRATES to analyze the local labor market to:
• determine employer needs;
• determine emerging, targeted, and demand occupations;
• identify employment opportunities that will allow the participant to meet the goal of 80% wage replacement of their previous wage; and
• identify employer-based training, such as OJT or Customized Training opportunities.
This analysis and the job seeker’s job search experience are important activities in the development of the Individual Employment Plan (IEP).

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C-400.2.8
TRACER

TRACER (Texas Rapid Access to Career and Economic Resources) is a system that provides the following five basic Internet programs containing useful data and statistics:
1. Covered Employment and Wages Program — collects information from many Texas employers.
2. Current Employment Statistics Program — produces current employment and wage data.
3. Local Area Unemployment Statistics Program — generates total employment, unemployment, and unemployment rates.
4. Occupational Employment Statistics Program — develops occupational profiles by industry.
5. Mass Layoff Statistics Program — gathers information from employers that recently had large layoffs.
Access TRACER on the Internet at: http://www.tracer2.com.

C-400.2.9
SOCRATES

SOCRATES is a tool to assist Workforce Center staff in performing regional labor market analysis. Staff use it to generate lists of targeted industries and targeted occupations. It is also excellent for researching regional labor markets in Texas and identifying occupational training possibilities. Using information gathered from SOCRATES helps narrow the dislocated worker’s job search.
Access SOCRATES on the Internet at: http://socrates.cdr.state.tx.us/.

C-400.2.10
Moving to Intensive Services

After initial assessment, background information, labor market information, and identification of whether suitable employment is available, determine one of the following steps:
• job search; or
• referral to training at the intensive services level, in an occupation that will allow the participant to meet the goal 80% of their previous wage to the maximum extent possible.

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Part D: Post-Trade Certification

Part 0 .. 100 -- Eligibility Determination

D-100.1: Certified Petition

When the U.S. Department of Labor (DOL) completes its investigation of the petition, it certifies or denies the petition and emails the determination to Texas Workforce Commission (TWC).

When TWC receives a certified petition, staff:

• notifies the appropriate Local Workforce Development Board (Board);

• updates the Trade Adjustment Assistance (TAA) petition status in The Workforce Information System of Texas (TWIST);

• requests a list of all affected workers under this petition from the employer, and enters the list into TWIST; and

• sends a letter of potential eligibility to the affected worker, with instructions to contact the Texas Workforce Center (Workforce Center).
Note: Receipt of a letter does not mean the worker is Trade certified. TWIST will assist the Center staff in identifying Tradecertified workers.

D-100.2: TWIST Petition Information

TWIST contains the information on whether a dislocated worker is Trade-certified. In TWIST, go to: Customer Information>Program Detail>TAA>Eligibility tab.
TWC requests certain information from the employer and makes an eligibility determination based on the response.
The status must be "yes" for all criteria for a dislocated worker to be Trade-certified and eligible to apply for Trade benefits.
The dislocated worker is now Trade-certified, but must still follow the Workforce Investment Act (WIA) Sequence of Services to access Trade benefits.
If the dislocated worker disagrees with the eligibility determination, the worker may file an appeal. See Part C-300.1.S.

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Part D-200 -- Intensive Services

D-200.1: Co-enrollment

At the time WIA intensive services begin, you must enroll all Trade-certified workers in WIA Dislocated Worker services.

Co-enrollment in both WIA and Trade programs allows the Tradecertified dislocated worker to fully benefit from WIA-funded case management and supportive services. The Dislocated Worker program gains credit for the successful outcome of the Tradecertified dislocated worker trained with Trade program funds and placed using WIA resources.

Here are key points to remember:

• Trade-certified workers are dislocated workers.

• All dislocated workers receive core services, including Rapid Response services and initial assessments

• The overall goal is to provide early intervention services that lead to rapid reemployment where the participant can expect an 80% wage replacement based on the prior employment.

• All TAA dislocated workers filing a petition must receive Rapid Response services, ES services as part of core services, and intensive services under WIA, including a referral to TAA funded vocational skills, or dual-language training when no "suitable employment" is available.

II Rapid Response and Core Services

II Intensive (including short-term pre-

II Assessment - Initial and Comprehensive

vocational training)

II Career Counseling, including a review II Training (vocational/occupational, or

of demand occupations that will address

dual-language), an OJT or customized

the goal of an 80% wage retention

Training

II Case Management

II Trade Readjustment Allowances (TRA)

II Supportive Services

II Health Coverage Tax Credit (HCTC)

II Job Development and Placement

II Alternative TAA for Older Workers

Follow-u

TAA

Note: If Rapid Reemployment is not possible, continue with a comprehensive assessment, develop an Individual Employment Plan (IEP), and refer the dislocated worker to training or an OJT, if appropriate.

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D-200.2: Comprehensive Assessment

Comprehensive and specialized assessments are necessary to determine the range of realistic demand occupations for each worker who needs TAA training. The purpose of the comprehensive assessment is to ensure that each participant has the skills and qualifications to participate successfully in the selected training services, and fully understands the training needs and the time commitment involved in the decision. Be sure to coordinate with your assessment specialist at this stage of the process.
The testing is more detailed than Rapid Response or core services. It may include:
• a battery of tests to identify basic and transferable skills;
• interest inventories; and
• employer-suggested assessment instruments.
You should consider employer-based training such as customized training or On-the-Job Training (OJT) as options. Job developers or the Business Services Unit (BSU) can provide information regarding employer requirements.

D-200.2: Comprehensive Assessment (continued)

Note: Employer-based training promotes employment placements, retention, earnings, and credential attainment.
Conduct in-depth interviewing and evaluation during the comprehensive assessment. This provides an opportunity for customer input and career counselor feedback. It helps determine what training programs may be successful and builds the dislocated worker's commitment and desire to follow the IEP.
Speak with your assessment specialist about the tools used in your local workforce development area (workforce area). Ensure that the Assessment Tool is appropriate for the LEP client as well as other dislocated workers. Some examples of assessment tools are:
• Test of Adult Basic Education (TABE);
• Comprehensive Adult Student Assessment System (CASAS);
• Career Occupational Preference System (COPS); and
• Other skill assessment tools and interest inventories.

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D-200.3: Individual Employment Plan

IEP is a tool that allows you to work in partnership with the Tradecertified dislocated worker to develop a reemployment plan. In order to ensure a comprehensive discussion of employer needs, occupational training, and wage expectations, the case manager must document in TWIST the following information:
• Include all labor market information (LMI) regarding targeted and demand occupations and wage information by occupation, as appropriate based on the individual assessment of knowledge skills and ability;
• Of the targeted and demand occupations, identify specific occupations that will meet the 80% wage replacement goal;
• Identify barriers for the selected occupation, and clearly establish how training will remove those barriers.
• The IEP must cover the widest range of demand and targeted occupations to ensure that the participant may make an informed choice.
• Ensure that if the participant selects an occupation that will not meet the 80% wage replacement goal that the case notes and the IEP reflect the client's decision.
In selecting an occupation the focus must be on local employers' job requirements. Be certain to connect training elements in the IEP to the specific occupation.

D-200.4: Individual Employment Plan Document
Page D-4

This document was previously known as the Trade-Affected Worker Assessment and Reemployment Plan. It now consists of entries and documentation in TWIST. This documentation is mandatory before a training referral can be approved. A hard copy signed by the client must be kept in the files.
What six critical elements should you include in the development of an IEP?
1. Job skills, work history, and education.
2. Assessment and other test results.
3. Specific occupation, selected in consultation with the participant and meeting the 80% wage replacement goal, which will be reasonably available on completion of training, or for

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Integration of Trade Services for Dislocated Workers: A Comprehensive Guide
which the worker is willing to relocate.
4. Job skills, requirements, certifications, or licenses that the worker lacks for employment in the selected job.
5. How the training plans meet all of the skills needs of the occupation (includes acquisition of English proficiency, basic education, and prerequisites required for the job) within the available weeks of TAA benefits, unless WIA benefits will be used to provide additional weeks of training.
6. LMI that includes wage information, including whether the occupation will meet the 80% wage replacement goal.

D-200.4: Individual Employment Plan Document (continued)
D-200.5: Supportive Services

Before you refer a Trade-certified dislocated worker to any type of training, regardless of whether it falls under intensive or training services. Remember, in order to approve the training, the casemanager must ensure that the individual meets each of the following six criteria and document the information.
1. No suitable employment is available.
2. Consider the ability of the Trade-certified dislocated worker to benefit from training based on a comprehensive assessment of the worker's knowledge, skills, and abilities.
3. Reasonable expectation of employment following completion of the training exists based on local targeted or demand occupations, or a bona fide job offer.
4. Training is reasonably available to the Trade-certified dislocated worker within the commuting area.
5. The Trade-certified dislocated worker is qualified to undertake and complete the training based on a comprehensive assessment of the worker's knowledge, skills, abilities, and interest.
6. Training is available for the selected occupation at a reasonable cost based on a review of similar Board-approved training in the workforce area. Reasonable cost comparisons, particularly in training programs for LEP workers, are discussed in detail under Part D-300.9 below.
Assess and determine the need for supportive services, and include this information in IEP. These services help Trade-certified dislocated workers:

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• remain in the program; • focus on the coursework; • stay on task; and • complete components successfully according to their IEP.

D-200.5: Supportive Services (continued)

Examples of supportive services are:
• child care; • transportation (e.g., bus tokens, gas vouchers); and
• referral to community resources Check your Board's supportive services policy for details.

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Part 0-300 - Trade Adjustment Assistance Benefits

D-300.1 : Job Search Allowances

Job search allowances helps the Trade-certified dislocated worker (who also has an active ES work application on file) with job search expenses such as reimbursements for transportation to job interviews outside the normal commuting area. Job search allowances may be approved if the worker:

• wants to relocate and has a bona fide job interview;

• applies within 365 days of the petition certification or most recent separation; or

• applies within 182 days after the last day of TAA-approved training.

Job search allowances reimburse up to 90 percent of the allowable cost for job searches outside the normal commuting area, up to a cumulative maximum of $1,250 if the individual meets the following criteria:

• Suitable employment is not available within the normal commuting area.

• There is a reasonable expectation the Trade-certified dislocated worker will obtain suitable full-time employment of long-term duration in the area where the job search is conducted (parttime employment is not allowed).

• The worker makes a written request and sends it to the TWC Dislocated Worker Unit through Workforce Center staff before beginning each job search trip.

• The worker arranges at least one job interview verified by TWC before leaving for a job search trip.

D-300.2: Relocation Allowances

The Trade-certified dislocated worker may use job relocation allowances to help relocate within the United States when local work is not available and the worker receives a bona fide job offer. The Trade-certified dislocated worker can receive an allowance of up to 90 percent of the allowable transportation and moving costs for the worker, the worker's family, and the worker's household goods. The worker can also receive a lump sum payment equal to three times the worker's average weekly wage, up to a maximum of $1,250.

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D-300.3: Relocation AllowancesEligibility Criteria
Page D-8

Consider these criteria for Relocation Allowances eligibility:
• The dislocated worker is Trade-certified.
• The Trade-certified dislocated worker has an active ES work application on file.
• Suitable work is not available within the normal commuting area.
The Trade-certified dislocated worker must obtain either:
• suitable employment with a reasonable expectation of long-term duration (at least 150 days or five months); or
• a bona fide offer of such employment in the area of intended relocation that is verified by TWC.
The Trade-certified dislocated worker must submit the formal written request before the beginning of the relocation and:
• before day 425 after petition certification or the date of the most recent total separation; or
• before day 182 after completing TAA-approved training.
Time limits for beginning and completing a relocation move expire 182 days after the date of application for relocation allowance or 182 days after the completion of training, whichever is later.
• If the worker uses a commercial mover, the maximum allowable weight for household goods is 18,000 pounds. "Self moves" are also allowable.
• The maximum insurance charge allowed is $50.
• Temporary living expenses are not reimbursable.
• Expenses are paid only for the Trade-certified dislocated worker and immediate family members residing with the worker.
• Amounts payable by TAA shall be reduced by any amount to which the Trade-certified dislocated worker is entitled or is reimbursed from any other source.

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D-300.3: Relocation AllowancesEligibility Criteria (continued)
D-300.4: Trade Readjustment Allowances
D-300.5:
Waiver of the
Training Requirement

• With prior written approval from TWC, relocation allowances may be made available and approved to include:
• storage of furniture for a maximum of 60 days; and
• extension of the relocation move expiration date.
Eligible Trade-certified dislocated workers may receive weekly TRA following exhaustion of their UI benefits. TRA benefits are generally paid only if the worker is enrolled in a TAA-approved training program or has a waiver of the training requirement.
The waiver of the training requirement pertains to TRA eligibility. To be eligible for TRA, a Trade-certified dislocated worker must:
• be in training within eight weeks of the petition certification date or within 16 weeks of his or her qualifying separation, whichever is later; or
• have a waiver of the training requirement based on the same time frame.
The waiver of training form identifies the reason training is not feasible for the Trade-certified dislocated worker. Valid reasons are described in Part C-400.2.3.
Initially, the waiver is issued for up to six months. The waiver of the training requirement is an ongoing assessment. Workforce Center staff must review it at least every 30 days to ensure the reason for the waiver is still valid. Staff must document this review in TWIST Counselor Notes. If there is no longer a valid reason, staff must revoke the waiver. At the end of the waiver period, if training is still not feasible, Workforce Center staff can issue another waiver.
Workforce Center staff must begin developing a reemployment plan within 90 days of the start date of the initial waiver if the Trade-certified dislocated worker is not employed, within two years of retirement, subject to recall, or has a health issue keeping him or her from training.

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D-300.5: Waiver of the Training Requirement (continued)

If the Trade-certified dislocated worker does not participate in the 30-day review or reemployment planning process, Workforce Center staff must recommend that the waiver be revoked.
Note: Workforce Development Letter (WD Letter) 29-05, issued May 12, 2005 and entitled "Trade Adjustment Assistance: Waiver of the Training Requirements" provides detailed guidance on the approval and management of the waiver of Trade Adjustment Assistance (TAA) training requirements for Trade Readjustment Allowances (TRA) recipients. WD Letter 29-05 is Appendix F-300 of this guide. It is also available online at:

D-300.6 Health Coverage Tax Credit

RCTC is a federal tax credit program that may pay 65 percent of the premiums paid by eligible Trade-certified dislocated workers receiving TRA benefits who are enrolled in qualified health coverage programs.
Training is an important component of the Trade program and is linked to other Trade benefits. To take advantage of RCTC, the Trade-certified dislocated worker must:
• receive or be eligible to receive TRA payments but must not have exhausted UI; and
• have filed a TRA claim; and
• have enrolled in a TAA-approved training program or have a waiver of the training requirement.
Note: See Part E-1 00 for more information.

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D-300.7: Alternative Trade Adjustment Assistance

ATAA is a benefit for Trade-certified dislocated workers at least 50 years of age who have attained a full-time position different than their previous position within 26 weeks of layoff. The Tradeeligible dislocated worker receives 50 percent of the difference between former and current wages for up to a two-year period ($10,000 maximum). The current annual wage must be less than $50,000.
A Trade-certified dislocated worker who begins receiving payments under ATAA cannot receive other TAA benefits and services except for relocation allowances and HCTC. This means a Trade-certified dislocated worker who accepts ATAA is no longer eligible for the training benefit or TRA.
Note: See Part E-200 for more information.
!

D-300.8: Appeals and Complaints

Boards must ensure that Workforce Center staff understand the Appeals process as it relates to Trade-funded services and inform Trade-certified dislocated workers. It is important to note that boards must establish procedures to ensure that any negative recommendation is transmitted to the TWC Trade Unit. The Trade Unit makes the final determination on any negative determinations such as denial of training, and will notify the worker of the determination and the Appeal deadlines.
Appeals must be submitted in writing within 14 calendar days of the date of the TWC Trade Unit determination to:
The Appeals Department, TWC Building 101 East 15th Street, Room 410 Austin, Texas 78778-0001
Fax: (512) 463-2590
Boards must also ensure that a written copy of the WIA complaint process is provided to and reviewed with the worker.

D-300.9: Training Criteria

The goal of TAA is to ensure Trade-certified dislocated workers become reemployed as soon as possible. However, if no employment opportunities meet the 80% wage replacement goal, these workers may require retraining.
There is no cap on the cost of trade-funded training either for an individual or for a particular occupation. The term "reasonable

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D-300.9: Training Criteria (continued)

cost" as used in the criteria for selecting vocational skills or duallanguage training means the cost of "like" training in a Board area. The selection of occupational training should not be based solely on the cost of training.
It is assumed that dual-language training will cost more than standard vocational skills training. Boards are encouraged to expand the opportunities for dual-language training in their Board area by encouraging training providers to develop such integrated curriculum and by taking appropriate actions to put the training on the Eligible Training Provider List.
Training is "like" or "similar" for cost-comparison purposes to the extent that it prepares the worker for a similar occcupation with similar wage and employment prospects, does so in similar time, and is similar in quality. Moreover, reasonable cost comparisions must be made over the entire course of training. So, for example, it would not be an appropriate assessment of reasonable cost to compare the costs of an ESL program versus a dual-language training program. It would be appropriate to compare the cost of a dual-language program to the total cost of a program comprised of stand-alone ESL followed by stand-alone vocational training, but only if the two programs were similar in quality and in time required to complete.
Workforce Center staff are responsible to assist workers in selecting approvable training. Approvable training is training that meets the criteria in Part D-200.4 above, and is provided by a training provider certified under the Eligible Training Provider System (ETPS). Also, the worker's assessment must indicate that the worker can successfully complete the training. Approving and referring a worker to training is a local decision (See D-300.8).
If the worker insists on applying for training that Workforce Center staff determines does not meet the approval criteria, and Workforce Center staff is unable to refocus the worker on approvable training, Workforce Center staff may recommend that TWC's Trade Unit deny the training request.
The assessment of the Trade-certified dislocated worker is critical to both the approval process and the recommendation of a denial of training.
Workforce Center staff must track the trade eligibility criteria and document the assessment information in the TWIST record.

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Part 0-400 .... Training Services

D-400.1 : Appropriate for Training?

If the completed IEP indicates the Trade-certified dislocated worker needs training to return to employment, Workforce Center staff and the Trade-certified job seeker must determine the appropriate training.

Use the assessment results, evaluation information, and interview outcomes to answer these questions:

Is suitable employment unavailable for the Trade-certified dislocated worker without training?

Will the Trade-certified dislocated worker benefit from appropriate training, and will the training ensure that the worker is completely (Job ready" at the end of the training?

Does a reasonable expectation ofemployment exist following the training, and was the worker fully informed as to the ability of the occupations to meet the 80% wage replacement goal?

Is training available at a reasonable cost? (Reminder: Tradecertified trainees must not pay for any required training costs.)

Does the Trade-certified dislocated worker have qualifications, capabilities, and the background to undertake and complete the training successfully?

Note: If the answer is "yes" to these questions, a training referral may be appropriate.

Additional approval considerations:
• Training must be full time:
• ,Stand-alone English as a Second Language (ESL), Adult Basic Education (ABE), or General Education Development (GED) programs should be 30 hours, where available;
• 12 hours per semester for a credit-hour program; or
• full time as defined by the training provider.

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D-400.1: Appropriate for Training? (continued)

• Training may last up to l04 weeks, but if remedial training is required, Workforce Center staff may recommend, in consultation with TWC's Dislocated Worker Unit, an additional 26 weeks of training.
• Training must be conducted within the United States.
• The proposed training program must provide all the skills and requirements upon completion which are needed for the worker to be job ready. For example if the occupation for which the proposed training is preparing the worker requires a license, then the training program must include gaining the license.

D-400.2: Training Referral

When making a training referral, Workforce Center staff:
• assist in selecting the training based on the Board's targeted or demand occupations, or an OJT, customized training opportunity or where a bona fide job offer exists; and
• provide information regarding the wages of such occupations and their ability to assist the worker in meeting the 80% wage replacement goal.
• provide information on all area training providers on the ETPS that provide training for the selected occupation or are Boardapproved to provide remedial or other short-term prevocational skills training.
• Ensure that the selected training meets the guidance on "reasonable cost" as described in Section D-300.9;
Note: For more information on ETPS and a list of approved training providers, visit TWC's Web site at:
http://tpcs.twc.state.tx.us/TPCS/j sp/wiahome.htln.
• the training provider must send Workforce Center staff the training program outline; and
• Workforce Center staff must enter the referral into TWIST in the TAA Program Detail.

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Remedial Training consists of:
English as a Second Language (ESL)
Adult Basic Education (ABE)
General Educational Development (GED).
Remedial training is appropriate if required for the Trade-certified dislocated worker to be job ready in the selected occupation.
Short-term Prevocational Skills Training prepares individuals for suitable employment or appropriate training referrals. It is generally less than six months in duration and must be tied to specific targeted or demand occupational training. Example: A short-term computer literacy class may apply to various occupations.
Vocational or Occupational Skills Training is for skilled workers or craftspersons such as plumbers, electricians, auto mechanics, air conditioning and heating repair persons, bookkeepers, and office assistants. Use your Board's list of targeted or demand occupations in helping the skilled worker.
Dual-Language Training (Integrated Vocational Skills Training or Contextual Learning) provides necessary vocational skills and remedial education together in a single integrated curriculum. This training blends ESL and other training with vocational skills training appropriate for LEP individuals (see Part C-400.2.5).
OJT is conducted by an employer. This type of training provides knowledge and skills essential for job performance. The duration of the training is based on the time required for the individual to become proficient in the occupation. Under OJT, the Board reimburses employers up to 50 percent of the trainee's wage rate.
Customized Training is designed to meet the special requirements of an employer or group of employers. Like OJT, the employer must commit to hiring an individual who successfully completes the training. Customized training for Trade-certified dislocated workers must meet the same criteria used for WIA.

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0-400.3: Types of Training (continued)

Note: For both OJT and Customized Training, the employer must be identified and skill requirements must be known. The employer plays a major role in the development of the training or curriculum. Review your Board's OJT and Customized Training contracts.

0-400.4: Training Program Amendment

Boards should make changes to an approved training program only for justifiable reasons. Decisions about changes should involve the Trade-certified trainee, Workforce Center staff, and the training provider.
If the Trade-certified trainee or training provider makes a substantial change to the training program curriculum or cost, the trainee must return to the Workforce Center to update his or her IEP. Workforce Staff e-mail the updated IEP to the training provider with a request for a training program amendment.

0-400.5: Follow-up Services Ouring and After Training

After the Trade-certified dislocated worker begins participating in training activities, Workforce Center staff must follow up with the worker on a regular basis. A good time to assess progress is when the worker comes to the Workforce Center to sign for supportive service items (e.g., bus tokens and gas vouchers).
Workforce Center staff may use the following criteria to evaluate the trainee's progress:
Is the Trade-certified dislocated worker progressing in his or her class work?
How are the Trade-certified dislocated worker's grades?
Does the Trade-certified dislocated worker need other supportive services?
What else can you, as a Workforce Center staffmember, do to assist the Trade-certified dislocated worker?

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D-400.5: Follow-up Services During and After Training (continued)

Supportive Services: Continue supportive services after the Tradecertified dislocated worker successfully completes the training, if appropriate. Workers often need supportive services until they get a job and start receiving paychecks. (Review your Board's supportive services policy for details.)
Job Development: Identify available positions in your workforce area with the help of your job developers or the Workforce Center's Business Services Unit (BSU). Work with these staff members to create a good job match between the employer and the job seeker. Coordinate the employer's requirements with the newly obtained skills and credentials of the job seeker to create a win-win situation for both of your customers-the employer and the job seeker. On-the-Job Training is considered a particularly valuable resource for trade-certified workers. A creative Business Services representative may find that employers are more willing to establish an on-going OJT program if short-term pre-vocational skills training, remedial education, or intensive dual-language training precedes the OJT.
Job Readiness: Provide job readiness workshops that include topics such as interviewing skills, dressing for success, or resume writing.
Gather Performance Information: After the Trade-certified dislocated worker finds employment, continue regular contact to gather additional information. Enter all information into TWIST.

D-400.6: Common Measures

All programs administered by the DOL's Employment and Training Administration will be subj ect to a Common Measures policy. The programs include TAA, WIA Dislocated Worker services, and National Emergency Grants.
These are the adult measures that will apply to TAA:
• Entered Employment
• Employment Retention
• Earnings Increase
• Efficiency
When the Common Measures policy becomes effective, separate guidelines will be issued for each program.

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D-400.6: Common Measures (continued)

Currently, all TAA participants co-enrolled in WIA are counted in performance under the WIA Dislocated Worker performance measures.
Dislocated Worker Common Measures description and calculation:
Entered Employment Of those not employed at the date of participation:
# of participants employed in the first quarter after exit # of participants who exit during the quarter
Retention Of those employed in the first quarter after exit:
# of participants employed in both the second and third quarters after exit # of participants who exit during the quarter
Earnings Increase Of those employed in the first quarter after exit:
Earnings in the first quarter after exit minus earnings in the quarter prior to the date of participation Earnings in the quarter prior to the date of participation
and
Earnings in the third quarter after exit minus earnings in the first quarter after exit Earnings in the first quarter after exit
Efficiency
Program appropriation level # of program participants
Note: For more information about Common Measures and performance, review Training and Employment Guidance Letter (TEGL) 15-03 available at: http://ows.doleta.gov/dmstree/teglitegI2k3/tegl 15-03.html.
Also, it is important to review your Board's follow-up policy.

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TEXAS WORKFORCE COMMISSION EXPLANATION OF 8ERVtCes

ATF Settlement Page 62

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witt! dlubll/ties.

 :

l ~ 1;.'1 THE UNITED STATES DISTRICT COURT

1\ i~ " FOR THE WESTERN DlSTRlCT OF TEXAS h,

(4 ..

EL PASO DIVISION

\t'r~;~N Wo':;~RIZOSD.EelTaRl.A. BAJADDRES

§ §

Plaintiffs;

§

Civi l Action Nos.

!

EP-04-CA-4oo-FM

v.

§

and

§

EP-02-CV-1 J l·fM

U.S. DEPARTMENT OF LABOR, et af.. §

Defendants.

§

FINAL ORDER OF DISMISSAL

Upon considt.Ting Plaintiffs' Motion to Dismiss filed herein, lhe Court now FL"lDS : (I) all plainltffs to both of the above cases have agreed to dismiss all of their clanns against all parties in both cases with prejudice; (2) all panies have agreed that this Court will retain jurisdiction for the sole purpose of enforcing the Settlement Agreement that Plaintiffs auached to their Motion to Dismiss; ( 3) no cross-<:taims or counter-claims are pending in either of the above cases; (4) no Rule 23 class certificarion has been requested or approved in the above cases; and (5) no Rule 66 receiver has been requested or appointed in either of the above cases.
TfIE COURT THEREFORE ORDERS, (I ) all clotims in both of the above cases are dismissed with prejudice; (2) this Court retains jurisdiction for the sole purpose of enforting the tenos of the Settlement Agreement attached to Plaintiffs' Motion to Dismiss; (3) the clerk shall file this order in both oflhl: above-numbered cases.
SO ORDERED THIS _ ...:30:-.-;_ 11-- _ _ DAY OF DECEMBER. 2005.
~C-.~
HJ'n. Frank Montalvo
United Stares District Judge

51

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

ASOCIACION DE TRABAJADORES §

FRONTERIZOS (ATF),'" a'"

§

§

Plaintiffs,

§

§

v.

§

§

CASSIE CARLSON REED, .t. a'.,

§

§

Defendants.

§

EP·02·CA-013I·FM

ASOCIACION DE TRABAJADORES §

FRONTERIZOS (AT!,), .1. aI.,

§

§

Plaintiffs,

§

§

v.

§

§

UNITED STATES DEPARTMENT OF §

LABOR,

§

§

Defendant.

§

EP-04-CA-0400·FM

. " "1
.•(. .''Oh/12~"r,

FINAL JUDGMENT

On thi.s day the Court considered the status of the above captioned causes, The Court issued

its "Final Order of Dismissal" inAsociacion de Trabajudores Fronlerizos, et 01. \/. Reed, et. al.. No.

EP·02-CA-13J-FM and Asociacion de Trabajadorcs Fronterlzos. et 01. l'. United Slafes Department

of Labor, No . EP-04-CA-040o-FM on January 2, 2006. There being no remaining claims against

the defendants, this matter has been finally adjudicated. IT IS TIlEREFORE ORDERED, in compliance with FEU, R. Ctv. P. 58, that this matter be

I,.

STRICKEN from the docket and there being no just cause for delay, tltis is a FINAL and

;; I

APPEALABLE Judgment.

i

,,!;

IT IS FURTHER ORDERED that all pending motions, if any, are DISMISSED as MOOT.
SIGNED th is 30th day of December. 2005.
~L~
FfuK MONTALVO UNITED STATES DISTRICT JUDGE

 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

ASOCIACION DE TRABAJADORES §

FRONTERIZOS (ATF),'" a'"

§

§

Plaintiffs,

§

§

v.

§

§

CASSIE CARLSON REED, .t. a'.,

§

§

Defendants.

§

EP·02·CA-013I·FM

ASOCIACION DE TRABAJADORES §

FRONTERIZOS (AT!,), .1. aI.,

§

§

Plaintiffs,

§

§

v.

§

§

UNITED STATES DEPARTMENT OF §

LABOR,

§

§

Defendant.

§

EP-04-CA-0400·FM

. " "1
.•(. .''Oh/12~"r,

FINAL JUDGMENT

On thi.s day the Court considered the status of the above captioned causes, The Court issued

its "Final Order of Dismissal" inAsociacion de Trabajudores Fronlerizos, et 01. \/. Reed, et. al.. No.

EP·02-CA-13J-FM and Asociacion de Trabajadorcs Fronterlzos. et 01. l'. United Slafes Department

of Labor, No . EP-04-CA-040o-FM on January 2, 2006. There being no remaining claims against

the defendants, this matter has been finally adjudicated. IT IS TIlEREFORE ORDERED, in compliance with FEU, R. Ctv. P. 58, that this matter be

I,.

STRICKEN from the docket and there being no just cause for delay, tltis is a FINAL and

;; I

APPEALABLE Judgment.

i

,,!;

IT IS FURTHER ORDERED that all pending motions, if any, are DISMISSED as MOOT.
SIGNED th is 30th day of December. 2005.
~L~
FfuK MONTALVO UNITED STATES DISTRICT JUDGE

 • Case 3:04-cv-00400-FM Document 31

• Filed 01/06/05 Page 1 of 27

IN THE UNITED STATES DISTRICT COURT Fi/,d FOR THE WESTERN DISTRICT OF TEXAS f;:--;Jo;:;~ti~~
EL PASO DIVISION

CION DE TRABAJADORES

JOSE DE LA CRUZ,

'U;i;~:R~~ODRlGO

I>i

AND

MORIN,

Plaintiffs, v.
UNITED STATES DEPARTMENT OF LABOR,
Defendant.

)

)

)

)

)

)

)

)

Civil Action No.

) EP-04-CA-0400-FM

)

)

)

)

)

)

THE DEPARTMENT OF LABOR'S RESPONSE TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT On November 5, 2004, Plaintiffs filed a Motion for Summary Judgment ("Summary Judgment Memo") pursuant to Federal Rule ofCivii Procedure 56. The Department of Labor ("the Department") responds to the Motion for Summary Judgment pursuant to local rule CV -7.
I. INTRODUCTION Plaintiffs Asociaci6n de Trabajadores Fronterizos ("ATF") and six individuals originally sued the Department, state and local agencies, and corresponding agency officials in this Court on April 3, 2002. ATF v. Reed, Case No. EP-02-CA-0131-FM (W.D. Tex., filed April 3, 2002) ("Original Texas Case"). Plaintiffs' suit challenged Defendants' administration ofjob training benefits under the Trade Act of 1974 to

• Case 3:04-cv-00400-FM Document 31

• Filed 01/06/05 Page 2 of 27

limited English proficient ("LEP") workers in E1 Paso, Texas. On December 17,2003,
this Court granted the Department's sealed Motion to Stay the Original Texas Case.
Six months after this Court granted the stay. ATF filed a nearly identical lawsuit
in the Federal District Court for the District ofColurnbia. though they named only the
Department as a defendant. ATF v. U.S. Dep't of Labor, Case No. 04-0993 (ESH)
(D.D.C., filed June 17,2004). Pursuant to the Judge's order in that case, ATF returned to
the Western District of Texas to seek severance of "three core claims against DOL,"
namely:
(I) whether the Trade Act prohibits DOL from allowing state agencies to approve incomplete training for trade-affected workers;
(2) whether the Trade Act requires DOL to issue regulations naming what actions state agencies are required to take to achieve Congress's 80% wage replacement goal; and
(3) whether the Trade Act prohibits DOL's on-the-job training regulation, 20 C.F.R. § 617.23(c).
Plaintiffs' Opposed Motion to Sever Claims Against Defendant U.S. Department of
Labor ("Motion to Sever") at 2 (Exhibit "Exh." 1). The Honorable Judge Frank
Montalvo granted Plaintiffs' Motion to Sever on October 20, 2004, and ordered Plaintiffs
to "file an amended complaint in the severed action which restates their claims as in their
Opposed Motion to Sever." Order Granting Plaintiffs' Opposed Motion to Sever Claims
("Severance Order") (Exh. 2). The Court directed the District Clerk to file the restated
complaint under a separate cause of action. Severance Order at 3.

Pursuant to this Order, Plaintiffs filed their Post-Severance Complaint on October 26,2004. On November 5, 2004, Plaintiffs filed a Motion for Summary Judgment. The Department now responds to that motion addressing the legal claims as set forth in this Court's Severance Order demonstrating that Plaintiffs are not entitled to summary

2

• Case 3:04-cv-00400-FM Document 31

• Filed 01/06/05 Page 3 of 27

judgment. Plaintiffs' Motion for Summary Judgment also presents a myriad of facts many of which, although not necessary to resolve Plainti ffs' legal claims, are in dispute. The Department has addressed these in Appendix A, attached hereto. 1

I. STANDARD OF REVIEW A. Summary Judgment Standard
Summary judgment is appropriate only if the record, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 56(c); ~ generally Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Beeler v. Rounsavall, 328 FJd 813, 816 (5th Cir. 2003); Houston Police Officers' Union v. City ofHouston, 330 FJd 298, 301 (5th Cir.2oo3). A fact is material ifit can affec t the outcome of the lawsuit. Ceiotex,477 U.S. at 322 (1986). A genuine dispute regarding a material fact exists if a reasonable fact finder could return a verdict for the non·movant. Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
B. Deference Must Be Afforded to tbe Department's Statutory Interpretations
The Administrative Procedure Act pennits Federal courts to review final agency action under certain limited circumstances. See 5 U.S.C. §§ 701·706 (2004). Plaintiffs assert that this Court has jurisdiction under § 706( 1), providing for judicial review of agency action unlawfully withheld; § 706(2)(A), allowing review of agency action that is alleged to be arbitrary or capricious; and § 706(2)(C), pennitting review of agency action

1 If this Court detennines that the issues presented herein cannot be detennined as a matter oflaw, these matters are not ripe for summary judgment because material facts are in dispute as discussed in Appendix
A.

3

• Case 3:04-cv-00400-FM Document 31

• Filed 01/06/05 Page 4 of 27

to determine ifit is in excess of statutory authority or short of statutory right.2 Each of Plaintiffs' allegations share a common theme, namely. that the Department has erroneously interpreted the Trade Act.
A court tasked with reviewing an agency's interpretation of a statute the agency administers must engage in the familiar Chevron two-step analysis. Initially a court must detennine whether Congress has directly addressed the question at issue. Chevron, U.S.A., Inc., v. Natural Res. Defense Council, Inc., 467 U.S. 837, 843 (1984). If Congress has spoken clearly, the court's interpretative task is at an end and the court must "give effect to [Congress'] unamb iguously expressed intent." Tex. Office of Pub. Util. Counsel v. FCC, 265 FJd 313, 320 (5th Cir. 2001) (''TOPUC'') (quoting Chevron, 467 U.S. at 843). A court "may reverse an agency's interpretation of an unambiguous statute only if it does not conform to the plain meaning of the statute." EI Paso Electric Co. v. FERC, 201 F.3d 667, 670 (5th Cir. 2000).
If, however, the reviewing court determines that the statute is ambiguous or si lent as to the precise question at hand, "the court does not simply impose its own construction on the statute." Chevron. 467 U.S . at 843. Rather, the court must defer to the agency's construction of the statute unless it is "arbitrary, capricious, or manifestl y contrary to the statute." Chevron, 467 U.S. at 844. Generally, courts will give deference to an agency's

2 Plaintiffs have not properly brought their claim related to post-training wage rates under 5 U.S.c. § 706( I) because the Department ha s promulgated regulations thai set forth the criteria to be used as a basis for making training detenninations under 19 U.S.C. § 2296(a)( 1), as required by 19 U.S.c. § 2296(a)(9). See 20 C.F.R. § 617.22 (2004). Nonon v. Southern Utah Wilderness Alliance, 124, S.Ct. at 2373, 2379 (2004); Ecology Ctr., Inc. v. United States Forest Serv., 192 F.3d 922, 926 (9th Cir. 1999). In the case at bar, "[t]he agency has acted . . . . Petitioners just do not like what the [agency] did." Public Citizen v. Nuclear Regulatory Comm'n, 845 F.2d 1105, 1108 (D.C. Cir. 1988); see also, Sierra Club v. Peterson, 228 F.3d 559, 568, 570-71 (5th Cir. 2000) (holding where "the [agency] has been acting, but the [petitioners] simply do not believe that its actions have complied with the [relevant statute]," there is no § 706(1) jurisdiction). Plaintiffs have not cited § 706(2) as a basis for their post-training wage rate claims, but the Department will respond to this issue as if it were brought under § 706(2).

4

• Case 3:04-cv-00400-FM Document 31

• Filed 01/06/05 Page 5 of 27

interpretation ora statute, so long as the interpretation is reasonable. Nat'JCable & Telecomm. Assoc. v. Gulf Power Co., 534 U.S 327, 333 (2002) (citing Chevron, 467 U.S. at 842-44); - see a- lso Thomas l efferson Urnv. v. Shalala, 512 U.S. 504, 512 (1994) (citing Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144,150-51 (199 1); Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 414 (1993) ("Confronted with an ambiguous statutory provision, we generally will defer to a permissible interpretation espoused by the agency entrusted with its implementation."); Lyng v. Payne, 476 U.S. 926, 939 (1986); Coal Employment Project v. Dole, 889 F.2d 1127, 11 31 (citing K Mart Corp. v. Cartier, Inc., 486 U.S. 281,291-92 (1988)). In conducting this analysis, the inquiry should focus on whether the agency's action was reasonable, not whether the action was the "preferred" action. TOPUe, 265 F.3d at 320. "The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initi ally had arisen in ajudicial proceeding." Chevron, 467 U.S. at 843 n.l1.
Such defe rence is warranted because the agency has unique knowledge of the subject matter related to statutes the agency administers. See, e.g., Good Samaritan Hosp., 508 U.S. at 414 ("Confronted with an ambi guous statutory provision, [the court] generally will defer to a permissible interpretation espoused by the agency entrusted with its interpretation."). Deference is due an agency's interpretation of its statutes because of "the agency's superior expertise in the area of its authority." State of Florida v. Mathews, 526 F.2d 319, 324 n.10 (5th Cir. 1976). In particular, an agency's contemporaneous interpretation of a statute has "carr[ied] the day against doubts th at might exist from a reading of the bare wo rds ofa statute," Good Samaritan Hosp., 508 U.S. at 414; see also

5

• Case 3:04-cv-00400-FM Document 31

• Filed 01/06/05 Page 6 of 27

Udall v. Tallman, 380 U.S. I, 16 (1965) (stating that an agency's interpretation of its own regulations is to be given substantial deference).
This considerable deference is especially compelling "whenever [a] decision as to the meaning or reach of a statute has involved reconciling conflicting policies... ," Chevron, 467 U.S . at 843 (citations omitted); see also Blackshear Residents Org. v. City of Austin, 659 F.2d 36, 38, 39 (5th Cir. Unit A Oct. 198 1) (emphasizing that agency decisions on policy are due considerable deference by courts: ", .. policy decisions of this sort rest particularly within the informed discretion of an administrative agency" and concluding that, "[a]lthough appellants suggest that funds should be expended on projects they prefer ... the court declines to make such a qualitative judgment."). Therefore, "if (the agency's] choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by statute, [a court] should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned." Chevron, 467 U.S. at 845 (guoting United States v. Shimer, 367 U.S. 691, 699·700 (1984)).
II. ARGUMENT A. The Trade Act Does Not Require an 80% Post-Training Wage Rate Plaintiffs claim that the Trade Act requires an 80% post-training wage rate. This claim is based on an erroneous construction of the Trade Act's statutory provisions and legislative history. 3 Because the Act does not require a specific post-training wage, the

1 Plaintiffs continually refer to "the" purpose ofTrade Act training as "retum[ing] trade dislocated workers to employment at SOOk or more of their prior wage." See, e.g., Summary Judgment Memo at 14, 16, 19, 21, 22. The Trade Act of 1974 included six express purposes. See Pub. L. 93·61S, § 2. Those same six codified purposes remain unchanged despite subsequent amendments to the Act. See 21 U.S.C. § 2102. One of the six enumerated purposes appears to apply most directly to Trade Act Assistance --- "(4) to (note continues on lIext page)
6

• Case 3:04-cv-00400-FM Document 31

• Filed 01/06/05 Page 7 of 27

Secretary cannot violate and has not violated the Act by failing to issue regulations comporting with Plaintiffs' erroneous reading.
(1) The Trade Act's Language and History Demonstrate That an 80% Replacement Wage is Not Required.
Section 2296 of the Trade Act outlines the criteria the Secretary must follow to detennine if a worker is eligib le for training benefits under the Act. 19 U.S.C. § 2296. The Secretary must detennine that there is no "suitable employment" available for a worker and that the worker would benefit from "appropriate" training. 19 U.S.C. § 2296(a)(1 )(A) & (B). The training must also be reasonably available, suitable for the worker, and available at a reasonable cost. § 2269(a)(1 )(0) & (F). In addition, the worker must be qualified for the training and there must be a "reasonable expectation of employment" following training. § 2296(a)(I)(E) & (C) (emphasis added). The Act does not include a requirement that training must lead to employment that provides at least 80% of the worker's previous wage.
Although Plaintiffs suggest that this Court must first detennine Congressional intent in order to properly interpret the Trade Act, a court "must, of course, start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used." Richards v. United States, 369 U.S. 1,9 (1962); see also Dep't o[Housing and Urban Dev. v. Rucker, 535 U.S. 125, \32 (2002) (noting that "reference to legislative history is inappropriate when the text of the statute is unambiguous."); United States v. Yeatts, 639 F.2d 1186, 1189 (5th Cir. 1981 )("A statute should ordinarily be interpreted

provide adequate procedures to safeguard American industry and labor against unfair or injurious import competition, and to assist industries, firm[s] , workers, and communities to adjust to changes in international trade flows." 19 U.S.c. § 2102(4). Nowhere in the Act is an 80% wage replacement codified as a purpose either of the Trade Act generally, or of the Trade Act Assistance provisions more specifically.

7

• Case 3:04-cv-00400-FM Document 31

• Filed 01/06/05 Page 8 of 27

according to its plain language, unless a clear contrary legislative intention is shown.")

(citing United States v. Apfelbaum, 445 U.S. liS, 121 (1980) (emphasis added». Here,

Congress has given this Court all the direction necessary to interpret the Trade Act, in the Act itself.4

(a) "Suitable Employment"

Although Plaintiffs vociferously argue that the statute and the regulations require

an 80% post-training wage replacement rate, neither the statute nor the regulations

require any specific post-training wage.

In 1981 , Congress amended the Trade Act, including extensive revisions orthe

training section of the statute. Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-

•

Plaintiffs' reliance upon UAW v. Brock, 816 F.2d 761,765-67 (D.C. Cir. 1987), to suggest that

Ihis Court must look beyond the plain language of the statute in order to determine whether Congress has

spoken to the issue of wage replacement is unpersuasive. The court in Brock was required to defme

"employment" for purposes of the Act, because the Act did not specifically define "employment." Brock,

816 F. 2d at 764. This Court need not go to the lengths of the Brock court in order to decide this case;

Congress has not only defined the tenn at issue, but it has carefully and precisely used the term only once

in the statute. Congress could not have been clearer:

If the Secretary determines that -- (A) there is no suitable employment . . . available for an adversely affected 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 reasonably available to the worker ..., (E) the worker is qualified to undertake and complete such training, and (F) such training is suitable for the worker and available at a reasonable cost, the Secretary shall approve such training for the worker.

19 U.s.c. § 2296(.)(1).

Plaintiffs' reliance on Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994), to distract the Court's attention from the plain language of the statute is also inapposite. Thunder Basin does not speak to this case. The Court in Thunder Basin was attempting to determine, in the face of statutory silence, whether judicial review was available for pre-enforcement claims. See Thunder Basin, 510 U.S. at 207-08 ("Whether a statute is intended to preclude initial judicial review is determined from the statute's language, structure, and purpose, its legislative history, and whether the claims can be afforded meaningful review.") (internal citations omined). The case at bar does not implicate judicial rev iew or even proper interpretation of a facially silent statute. To the contrary, the Trade Act explicitly defines "suitable employment" and is straightfonvard regarding when the Secretary must take the availability of "suitable employment" into consideration. In this case, the plain language of the statute must control. See Ingalls Shipbuilding. Inc. v. Director, Office of Workers' Compensation Programs, 519 U.S. 248, 261 (1997) (recognizing that a statute's plain language controls unless it lead to results that are "absurd or glaringly unjus1.") (quoting United States v. Rodgers, 466 U.s. 475, 484 (1984».

8

• Case 3:04-cv-00400-FM Document 31

• Filed 01/06/05 Page 9 of 27

35, § 2506, 95 Stat. 357 (1981). This marked the first time that Congress outlined the specific criteria for training eligibility under the Act. Significantly. in the 1981 Amendments, Congress used "suitable employment" only once and defined it for the limited purpose of § 2296 to mean: "work of a substantially equal or higher skill level than the worker's past adversely affected employment, and wages for such work at not less than 80% of the worker's average weekly wage." 5 19 U.S.C. 2296(e). Congress included the term "suitable employment" for training eligibility purposes, but omitted the term "suitable" when referring to what employment would be reasonably expected to be available fo llowing training.6 Congress' exclusion of the phrase "suitable employment" when referring 10 post-training employment demonstrates that the statute does not require an 80% post-training replacement wage. 19 U.S.c. § 2296(a)(I)(c); Keene Corp. v.

5 Congress carefull y distinguished "suitable employment," as defined for the purposes of the Trade Act
from "suitable work" under the Federal-State Extended Unemployment Compensation Act of 1970 (EB), Pub. L. 91-373, § 202, 84 Stat. 708, which requires workers to seek and accept "any work which is within such individual's capabilities.. . ." Pub. L. 91-373, § 202(a)(3)(C). By defming "suitable employment"
explicitly in the 1981 Amendments, Congress made clear that workers wishing to take advantage of the training opportunities available under the Act could not be considered disqualified for lUlemployment assistance or TAA benefits "by leaving lower-leve l or minimum wage EB-required work" to accept TAA
training. H.R. CONF. REP. 97-208 (1981), reprinted in 1981 U.S.C.C.A.N. 1010, 1366. Thus, Congress
guaranteed TAA eligible workers the ability to increase their skills and education through Trade Act Assistance training without losing their eligibility for income assistance for refusing "any work ... within (the worker's] capabilities."

•

Plaintiffs rely on Senate Reports from 1974 and 1981 for the proposition that Congress intended

Trade Act training to result in an 80"10 replacement wage. See SUnun3ry Judgment Memo at 18. The

Senate Report from 1974 states: '·It is intended that every effort be made to place workers in suitable

employment through the use of employment services provided for in Section 235 [which includes

counseling, testing, and placement services] and that training be authorized only whe n the Secretary finds
that suitable employment is not otherwise available." S. REP. No. 93-1298 (1974), reprinted in 1974

U.S.C.C.A.N. 7186, 7280. Congress language that "every effort be made" makes clear that this is a goal

and not a requirement. Moreover, Congress had not defined the term for this version of the Act.

Moreover, the import of the 1981 Amendments is inescapable: Congress specifically used the term "suitable employment" ~ in the statute, and defined it precisely. Anee requiring the Secretary to detennine if "suitable employment" was available, Congress assiduously avoided invoking the defmed term again. A permissive statement in a Senate report cannot change the statute Congress enacted.

9

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United States, 508 U.S. 200, 208 (1993) ("[wJhere Congress includes particular language in one section of a statute but omits it in another ... it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."); Castillo v. Cameron County, Tx., 238 F.3d 339, 356 (5th Cir. 2001) (sarne) (quoting BFP v. Resolution Trust Corp., 511 U.S. 531 , 537 (1994)); Ott v. Johnson, 192 FJd 510, 513 (5th Cir. 1999) ("It is a fundamental tenet of statutory construction that Congress intended to exclude language included in one section of a statute, but omitted from another section.").
In accordance with the Act's construction, the implementing regulations require that before training is approved the Secretary must detcnnine that there is no "suitable employment" available to the displaced worker. As defined in the regulation (and exactly as defined in the Act), "suitable employment" means work "of a substantially equal or higher skill level than the worker's past adversely affected employment, and wages for such work at not less tha[n] 80% of the worker's average weekly rate.,,7 20 C.F.R.

7 The historical evolution of the Trade Act is helpful in understanding the term "suitable employment." When Congress originally enacted the Trade Act in 1974, it did not define the term "suitable employment," nor does the concurrent legislative h.istory illuminate what Congress meant by the term. However: an agency's contemporaneous construction of a staNte is particularly relevant in determining the proper interpretation of a statute. Good Samaritan Hosp., 508 U.S. at 414 (allowing an agency's "contemporaneous construction . . . to carry the day against doubts that might exist from a reading of the bare words of the statute"). The 1975 regulations issued by the Department state that eligible workers should receive "testing, counseling, job referral, and other placement services .. . necessary to prepare the worker for full employment in accordance with the worker's capabilities and job opponunities," and that if "suitable employment [for el igible workers] is not otherwise available and the worker's employability would be improved thereby, the worker may be selected or referred to training .. . ." 29 C.F.R. § 91.17 (d) (1974), 40 Fed. Reg. 16304 (Apr. 11 , 1975). Noticeably, the 1975 regulations do not require that training be limited only to those situations in which the post-training wage is 80% of the worker's previous wage; rather, the regulation, paralleling the statute, first requires a determination of whether "suitable employment" is available. If it is not, then both the starutory and regulatory focus shifts to improving the employability of the worker through training.
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§ 617.22(a)(1 lei) (2004). "Suitable employment" is but one of six factors in detennining
when a claimant is eligible for training.s Despite the Act's plain language, Plaintiffs cite to 20 C.F.R. § 617.2, a general
introductory provision in the implementing regulations, which presents the Department's goal of assisting individuals in returning to suitable employment. Juarez Depo. at 222:69 ("Q: And as I understand your testimony, DOL's goal is to get everyone an 80% wage replacement job or better? A: That is the goaL") (Exh. 35). The only requirements established in the regulations are set forth in 20 C.F.R. § 617.22, which mirrors the statutory provision of 19 U.S.c. § 2296(a)(I). Just as in the statute, the regulations provide that training shall be approved if suitable employment is not available. 20 C.F.R. § 617.22(a)(I), and that there should be a reasonable expectation of employment following completion of the approved training. 20 C.F.R. § 617.22 never uses the phrase to refer to post-training wages.9
A court "may reverse an agency's interpretation of an unambiguous statute only if it does not confinn the plain meaning of the statute." EI Paso Electric Co., 201 FJd at

a In fact, the legislative history Plaintiffs cite suppons the Department's interpretation: "It is intended that every effon be made to place workers in suitable employment through the use of employment services provided for in [the Act] and that training be authorized only when the Secretary fmds that suitable employment is not otherwise available." S. REp. No. 93-1278 (1974), reprinted in 1974 U.S .C.C.A.N. 7278-79, referencing the Trade Act of 1974, Pub. L. No. 93-618, § 236, 88 Stat. 1978 (1975). This illustrates that suitable employment is used in detennining training eligibility and that immediate reemployment should be the first goal. Moreover, both the legislative history and the regulations suppon the Department's interpretation that 80<'10 wage replacement is a goal, not a mandate, of Trade Act Assistance. See S. Rep. No. 93- 1278 ("every effon should be made"); 20 C.F.R. § 617.2 (purpose).
9 The Department has carefully limited its use of the phrase "suitable employment" in the regulations to maintain the statutory intent. The tenn "suitable employment" is only used in sections 617.2 (purpose), 61 7.18(b)(iii) (requirements fo r disqualification of trainees), 617.20(b)(3) (deflDing States' responsibilities in detennining whether pre-training "suitable employment" is available), 617.23(a) (" If suitable employment as described in § 617 .22(a)( I), is not otherwise available to an individual. ..it is the responsibility of the State agency to explore... training opportunities"), 617.32(a)(4) (job search eligibility), and 617.44 (relocation allowance eligibility). Once again, none of these sections use the phrase in the context ofpost-training wages.

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670. Because there is no statutory requirement that training must lead to employment paying an 80% replacement wage, the Court should defer to the Department's interpretation of the Act.
(b) Appropriate Training Suitable For the Worker If it is clear that there is no suitable work available to the trade affected worker, the Secretary must detennine if there is appropriate training available. 19 U.S.C. § 2296(a)(1 )(B). The regulations explain that "appropriate training" means that the approved training will directly address a worker's need for additional skills or remedial education. 20 C.F.R. § 617.22 (a)(2)(i) (2004). This interpretation is supported by the legislative history: "The conferees intend that training be appropriate to the employment opportunities reasonably available to the worker considering the occupational skills used by the worker in prior employment as well as new skills that might be acquired through a concentrated training program." H.R. CON' . REp. NO. 100-576 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1734. Similarly, such training must be "suitable for the worker," and the worker must be qualified for any training approved, that is, the worker's physical and mental capabilities, educational background, and work experience must be assessed to ensure that the training approved adequately addresses the needs of the worker and the worker can complete the training. 20 C.F.R. § 617.22(0)(5) & (6). The House Conference Report regarding the 1988 Amendments to the Trade Act, which added the sixth criteria for training approval requiring training to be suitable for the worker and available at a reasonable cost, states that "[i]n detennining whether training is suitable, the conferees intend training to enable workers to obtain reemployment within a reasonable period of time at a skill level other

12

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than they would have been able to obtain absent such training." H.R. CONF. REp. No. 100-576 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1734. The House conferees did not interpret the Trade Act to require that training lead to an 80% replacement wage; rather, their understanding was that Trade Act training should increase the skill set of trade affected workers to facilitate the worker's rapid reintroduction into the workforce. This criterion is discussed further, infra, with regard to incomplete training.
(c) Reasonable expectation of employment Trade Act training should culminate in a reasonable expectation of employment upon completion of the training. 20 C.F.R. § 617.22(a)(3)(i). A "reasonable expectation
ofemployment" means that there is a fair and objective expectation that, upon completion of training, the worker has a reasonable possibility of obtaining ajob utilizing the education and skills acquired from the training. 20 C.F.R. § 617.22(a)(3)(i). A guarantee of employment at the end of training is not required; rather an objective projection of market conditions should indicate that the education and skills acquired during training will be in reasonable demand in the job market upon completion of training. Id. As noted, neither the statute nor the regulations use the phrase "suitable" in this criterion. There is no requirement that employment following the completion of training provide an 80% replacement wage.
Plaintiffs cannot show that the statute requires any specific post-training wage rate, nor can they show that the Department's regulations or policies violate the statute. 10 Thus, summary judgment for the Plaintiffs on this issue must be denied.

HI Plaintiffs' reliance upon Oregon Natural Res. Council v. Lyng, 882 F.2d 141 7, 1427 (9th Cir. 1989) to support their contention that the Department must promulgate regulations mandating an 80% replacement (note continues 011 lIext page)
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(2) This Court should defer to the Department's reasonable interpretation of the Trade Act
The language of the Trade Act is clear: there is no statutory requirement that
approved training must lead to "suitable employment." The Court's inquiry should end
here because Congress has spoken to the issue at hand. See Chevron, 467 U.S. at 842-43;
United States v. Apfelbaum, 445 U.S. liS, 121 (1980). However, if this Court were to find the statute ambiguous regarding whether post-
training employment must result in 80% wage replacement, the Department's
interpretation of the statute and the implementing regulations should be given deference
because it is a reasonable interpretation. See Gulf Power Co., 534 U.S at 333 (citing
Chevron, 467 U.S. at 842-44); see also Thomas Jefferson Univ., 512 U.S. at 512 (citing
Martin, 499 U.S. at 150-51 (1991)); Good Samaritan Hosp. , 508 U.S. at414
("Confronted with an ambiguous statutory provision, we generally will defer to a
permissible interpretation espoused by the agency entrusted with its implementation.");
Payne, 476 U.S. at 939; Tallman, 380 U.S. at 16 (stating that an agency's interpretation
of its own regulations is to be given substantial deference).
The Department' s interpretation of the statute and its regulations is entitled to
deference because it closely follows the statutory language, liberally construes a remedial
statute, and is permissible. See Rucker, 535 U.S. at 128M 29, 136 (upholding HUD's
regulations which "closely track the statutory language" because the regulations followed
wage for training approval is unavailing. In!::l!!g, the Secretary of Agriculture had not issued!!!y regulations under § 10 of the Hells Canyon National Recreational Area Act, 16 U.S.c. § 46Ogg, et seq., including the regulations "of the son" required in the subsections of statute. Id. at 1427. Unlike!::Y!!g, this is not a case where the Secretary has refused to promulgate regulations; to the contrary, the Secretary of Labor has promulgated the specific regulations required by the Act. The Plaintiffs simply disagree with the content of those regulations. This is precisely the sort of claim that cannot be addressed by a court under § 706( I).

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the plain meaning of the statute); Stinson v. United States, 508 U.S. 36, 44 (1993) ("{C]ourts must defer to the agency's interpretation so long as it is 'a permissible construction of the statute. n,) (quoting Chevron, 467 U.S. at 842-43); K mart Corp., 486 U.S. at 292 ("If the agency regulation is not in conflict with the plain language of the statute, a reviewing court must give deference to the agency's interpretation of the statute.") (citing United States v. Boyle, 469 U.S. 241, 246 n.4 (1985)); Labelle Processing Co. v. Swarrow, 72 FJd 308, 318 (3rd Cir. 1995) (recognizing that where an agency's interpretation of a statute is reasonable, the fact that the agency's interpretation follows the statutory construction canon of liberally construing a remedial statute is an additional reason for the court to defer to the agency's interpretation); Warmtex Enterprises v. Martin, 953 F.2d 1133, 1137 (9th Cir. 1992) (where an agency's reading of its regulation is "consistent with the language and purpose ofthe statute" it is entitled to deference). If the Department were, contrary to an express Congressional mandate and supporting legislative history, to approve only training that resulted in an 80% posttraining wage, the Department would unnecessarily limit the pool of potential training. I I

"

Plaintiffs cite to UA W v. Marshall, 584 F.2d 390, 395 (D.C. Cir. 1978) and UAW v. Brock. 568 F.

Supp. 1047, 1053 (D.D.C. 1983), in support of their contention that the Trade Act must be liberally

construed, due to its remedial nature. See Summary Judgment Memo at 16. Plaintiffs argue that their view

more liberally construes the statute. However, Plaintiffs' argument, when taken to its logical conclusion, is

tnat individuals will receive no training at all if the training available does not meet the very strict criteria

Plaintiffs wish to impose. In short, if training is not available that would resuil in an 80% post-training

wage, an applicant would be ineligible for training under the Act.

Plaintiffs also suggest that because there is a statutory cap on the amount of training money available per year under the Trade Act, more regulation is necessary to ensure equal funds are spent across the country. See Summary ludgment Memo at 17. Plaintiffs further suggest lnat wage replacement consideration is the appropriate vehicle to address this.

However, Congress considered a training cost ceiling for individual workers in 1988 and rejected it because "such costs may vary significantly from one region of the country to another and from one worker dislocation to another. However, the conferees expect the Secretary of Labor to set forth guidelines for State administering agencies to provide approved training at the lowest reasonable cost for the particular
(nole continues on nexl page)

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The Department's regulations allow for consideration of a wider range of training opportunities in order to meet every individual's personal training needs and desires. See, e.g., 19 U.S.C. § 2296(a)( 1)(A) & (E) (requiring the Secretary to detennine, based upon the particular trade affected worker's skill level and past earnings, whether suitable employment is available for the worker); § 2296(a)(I)(F) (requiring that any training approved be suitable for the particular worker).12
B. Departmental Regulations Alreadv Require that Workers Be "Job Ready" Post-Training
The Act requires that a detennination be made that a worker will benefit from training and that there is a reasonable expectation of employment following the training. " 19 U.S.C. § 2296 (a)(1 )(8) & (C). The Trade Act does not specifically include the phrase 'job ready" anywhere in Section 2296, the section governing training
criteria.
The Department has, however, interpreted the phrase "appropriate training" and included a ''job ready" requirement in its regulations. This interpretation is an attempt to

type of training in that region consistent with the objective of assisting import-impacted workers to obtain suitable skills to return to work as quickly as possible." H.R. CONF. REp. 100-576 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1733. The Department has, as expected, issued regulations requiring State agencies to consider costs when approving training. See 20 C.F.R. § 617.22(a)(6)(ii), (iii) and 617.22(b).
In addition to being the correct interpretation, the Secretary's interpretation of the training section of the statute provides a remedy to far more trade affected workers than the Plaintiffs' stringent demand. As such, it more liberally construes the Act.
12 The Department has addressed specific factual contentions related to "suitable employment" in Appendix
A.
n A "reasonable expectation of employment" is related to job market conditions, as discussed supra at p. 13. Plaintiffs use the criteria that there be a "reasonable expectation of employment" to support their argument that incomplete training carmot, by defmition, provide a reasonable expectation of employment. See Summary Judgment Memo at 9. However, Plaintiffs take this criterion out of context. This is not relevant to the issue of complete training or "job readiness." This is a 100110 ensure that individuals are being trained for jobs that should be available in the localjob market after an individual completes the training.

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provide individuals with the most effective training and as many skills as possible
through that training. The regulations expand on § 2296(a)(1 )(B): (2) The worker would benefit from appropriate training. (i) This means that there is a direct relationship between the needs of the worker for skills training or remedial education and what would be provided by the training program under consideration for the worker, and that the worker has the ,.. capabilities to undertake .., and complete the training. This includes the furthe r criterion that the individual will be job ready on completion of the training program.
20 C.F.R. § 617.22(a)(2)." The Department's practice has been consistent with the requirements codified in
the regulations. Plaintiffs admit, for example, that the Department has approved Texas's Trade Adjustment Assistance Policy and Procedure Manual·· a manual that includes the
criteria that a worker be job ready upon completion of training. See Summary Judgment Memo at 10. Moreover, evidence at bar also demonstrates that the Department expects training to provide workers with all the skill necessary for employment. Tomchick
Deposition ("Depo.") at 76:4·1 9 ("...if approved, [training] is supposed to have a person
be job ready.") (Exh. 44); Smith Depo. at 21: 1-5 ("Q: Describe what you mean by job
ready. A: They have the skills that are needed to become employed or to be able to seek employment.") (Exh. 43); Purnell Depo. at 107: 18 to 108:5; 115:23 to 116:I (Exh. 38). The Department has reasonably interpreted the statutory language "appropriate training."
There is no legal dispute as to what the regulations require. Nor is there a dispute as to

14 This regulatory provision is related to § 2296(a)(1)(B) (''tbe worker would benefit from appropriate training") and not § 2296(a){\)(C) ("there is a reasonable expectation of employment following completion of such training"), which is referred to in a separate regulatory provision. 20 C.F.R. § 617.22(a)(3).
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the Department 's policy regarding this issue: the Department requires state agencies to approve training that renders an indi vidual job ready.IS
(1) There is No Systemic Evidence That the Texas Workforce Commission Does Not Comply With the Regulations.
As explained, there is no legal dispute as to what the Department' s regulations require. Plaintiffs' claim, however, raises a factual challenge by stating that the Department "allows TWC to approve stand-alone remedial education" under the Trade Act and that the "natural consequence" of this is that TWC approves incomplete training, I6 See Summary Judgment Memo at p. 11 . However, Plaintiffs have provided no determinative evidence that the approval of incomplete training occurs on a systemic basis in E1 Paso.17
The Department recognizes that there may be isolated instances in which, because of the time and monetary constraints of the Trade Act, incomplete training may be approved fo r individuals on a case-by-case basis, but there has been no evidence of this

IS Plainliifs cite GAL 2-88 in fact 40 as support for the contention that the Departmenl "routinely and strictly" limits worker choice. However, the GAL directs state agencies to make case-by-case determinations regarding training rather than dismissing any training program outright. DOL GAL No. 288 at 3 ("Q: Maya State establish a standard to disapprove trai ning for MA (masters) or higher degree? A: No. Training must be approved or disapproved on the basis of the five criteria at 20 CFR 617.22.") (issued pre- I988 amendments which added a sixth training criteria) (Exh. 12). The Department requires that training choices be made on a case-by-case basis. As Plaintiffs note in footnote 9, courts have upheld denials of training in situations where the training would exceed the statutory time limits. See Summary Judgment Motion al 13. The time limit on training is specifically outlined in the statute at 19 U.S.C. § 2293(aX2).
16 There is nothing natural about suc h a co nsequence. Indeed, there may be instances in which remedial education or ESL is all the training thai an individual needs to become "job ready." Purnell Depo. at 116:71I (Exh. 38); DOL PREP Grant Contract at ETATOPL 03896 (Exh. 9).
17 Assuming, arguendo, that in the few individual instances (out of thousands) Plaintiffs present, the State or local board violated the Department 's regulations, Plaintiffs have still not established a systemic claim. If these individual instances do exist, such instances should be reviewed by the State Court as discussed infra, at pp. 21-22. Plaintiffs have also provided no evidence that there are cUffentiy problems with training determinations in El Paso or elsewhere in Texas. Plainliffs' evidence comes mostly from 19972000.

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presented at bar. IS The Department expects that, if these situations arise, additional training wou ld be funded by another SOUTce, such as the Workforce Investment Act. 19 Juarez Depo. at: 378:2 10 379:24 (Exh. 35); Smith Depo. at 61:8 10 62:5 (Exh. 43); DOL GAL No. 4-89 ("Remedial education was added as approvable training under Section 236 of the Act and States are no t only allowed but strongly encouraged to obtain free training and to combine TAA funds with those from other Federal, State or private sources. Use of non-ETA funds for training along with delivery of training from non-TAA sources should necessarily be the result of the development and/or strengthening of existing linkages wilh Wagner-Peyser, JTPA Tille IIIIEDWAA or other sources.") (Exh. 26). This is especially true when the alternative to providing as many skills as possible through training would be the denial ofallY training if other appropriate training is not otherwise reasonably available?O If Plaintiffs' argument is again taken to its ultimate conclusion, the Department would have to deny training to individuals that may need more than 130 weeks of training; indi viduals thus would be denied any job ski lls training,

18 The 2002 Amendments provide for an additional 26 weeks of trade fe-adjustment assistance, which the Department has interpreted as allowing up to 130 weeks of training whe re remedial training is required, increasing the likelihood that an individual worker will have sufficient time to complete the remedial education component of a training program and receive approved skills training. See DOL TEGL No. 1102 at ETATOPL 08469-70. It should be noted that the approval of a training program, including remedial education, does not guarantee that the worker will successfully complete the training program. There will always be individuals who drop out of training or do not sufficiently progress through training.
19 The Department reiterated this in its response to an admission Plaintiffs posed; a response which Plaintiffs only partially quote. Plaintiffs asked the Department to admit that it has a policy allowing approval of incomplete training. Of course, the Department denied this statement in the portion Plaintiffs omitted. The Department recognizes however, that there may be instances, when reviewed on a case-bycase basis, where the available weeks of training are insufficient to provide all of the training needed by an individual, but where approval of a training program which provides as many jobs skills as possible may be appropriate.
l{I The result that individuals may receive no training is especially likely when the affected population has characteristics like those of the trade affected population in El Paso: older workers with low literacy levels, low levels of English, and limited transferable skills.

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which may include remedial training. The Department has attempted to avoid this ridiculous outcome by liberally construing this requirement in order to provide training to a larger group of affected workers.
In support of their argument that ESL and GED are approved without a vocational component to the training, Plaintiffs present facts 75 and 76, relating to two specific individuals. Mr. Raul Trejo, as presented in fact 75, was approved for a complete course of training including ESUGED and commercial truck driving courses. See WDB Review of Training Opportunities Form (reflecting approval of truck driving program) (Exh.27). Mr. Trejo did, in fact, complete truck driving courses,21 This is not in violation orlhe regulations because this form reflects that a complete training program was approved, including remedial and vocational courses. 22 Mr. Rodolfo Gilbert's training form does reflect ESLIGED as the occupation, which is not an accepted practice under the regulations except in situations where an individual only needs this type of training in order to re-enter the workforce. 23 Plaintiffs have not shown that Mr. Gilbert, who incidentally is not a named Plaintiff, needed training beyond remedial training.

~1 Plaintiffs agreed to informally remove Mr. Trejo from the Original Texas Case because he did, in fact, complete his commercial truck driving courses. See Letter dated 8/28/03, from Carmen E. Rodriguez, Counsel for Texas Rural Legal Aid. Inc., to Alex Fernandez, Counself for the Department (Exh. 28) and Letter dated 8/22/02 from Robert L. Blumenfeld, Counsel for Upper Rio Grande Workforce Development Board to Carmen Rodriguez and Alex Fernandez (Exh. 45).
11 Plaintiffs argue that bilingual training is better than "serial" training, where English is taught prior to vocational courses, and that the Department should be placing individuals into bilingual training because it is "better." However, remedial training is contemplated as appropriate training under the Act. Further, the Department has no obligation to create training programs if they do not exist, nor does the Department force individuals to enroll in bilingual training if they choose ESL or GED classes. The efficacy of each individual training decision is a factual contention and the individuals may appeal these decisions through the State courts. See, in fra, pp. 21-22. This matter is not ripe for summary judgment if a decision hinges on the factual issue regarding bilingual vs. serial training.
l) Ms. Purnell testified that ESUGED should not be listed as an occupation on a training contract if the individual requires more than ESL or GED to be 'job ready." Purnell Depo. at 145:23-5 (TIVC does not
(note continues on next page)
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Even if taken in a light most favorable to Plaintiffs, these two instances are insufficient to establish a systemic violation of Departmental regulations ·· or a de facto Departmental poiicy.24 Furthermore, there is a readily available route through which those individuals can seek redress of their training assignment.
(3) Aggrieved Individuals Must Seek a Re-Detennination of Individual
Benefits Through State Processes Section 2311 of the Trade Act states that "[aJ detennination by a cooperating State agency with respect to entitlement to program benefits under an agreement is subject to review in the same manner and to the same extent as detenninations under the applicable State law and only in that manner and to that extent." 19 U.S.c. § 2311(d) (emphasis added). In addition, the Supreme Court has held in UAW v. Brock that Federal courts do not have jurisdiction to review individual benefit detenninations because the Trade Act provides that any benefit detennination by the State shall be reviewed only in the way that unemployment compensation detenninations are reviewed. See UAW v. Brock, 477 U.S. 274, 284-85 ( 1986). Accordingly, individuals must seek relief through the state courts under state law. Brock, 477 U.S. at 274 (1986). The review of individual benefit detenninations does not

consider ESUGED to be an occupation) and 116:7.11 ; 208:18·24 (remedial or ESL only is approvable) (Exh.38). This is evidence that Texas follows the Department's regulalions at 20 C.F.R. § 617.22(aX2).
14 Interestingly, of the five individually named Plaintiffs, only one completed training. See Mora Depo. at 50:2·13 (Exh. 39). At leasllwo of the olher individuals dropped OUI of training before it was over. Renteria Depo. at 48:4·10 (Exh. 41); De La Cruz Depo. at 30:9·11 (Exh. 46). The individual Plaintiffs also admit that they requested ESL or basic skills courses. See Marisela Rodriguez, TAA Contract Amendment Packet Checklist, ATF SEC 00090 (Exh. 23), Sandra (Rangel) Mora, Trade Affected Worker Assessment and Reemployment Plan, ATF SEC 3280·2 (Exh. 24), Marisela Rodriguez, AlE Assessment Evaluation Report, ATF SEC 3306 (Exh. 25); Morin Depo. at 13, 19-20 (Exh. 40); De La Cruz Depo. at 29 (Exh. 34); Rodriguez Depo. at 9, II , 30-1, 46-7, 56 (Exh. 42); Mora Depo. at 4, 46 (Exh. 39); Renteria Depo. at 43·4 (Exh. 41). There is no evidence that the State violated the regulations with regard to the individual Plaintiffs; the individual Plaintiffs were approved for complete training, with ESL or GED and vocational skills training, and one even completed this training, in accord with the regulations.

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fall within the purview of this Court. Only systemic violations of the Act or regulations can be adjudicated by this Court. If an individual is dissatisfied with the training program that is approved, the individual must appeal through the State's unemployment compensation appeal process.
Texas's Trade Adjustment Assistance Policy and Procedure Manual is consistent with the statute and regulations and requires that a worker be job ready at the completion of training. See Summary Judgment Memo at 10 (citing TWC Trade Adjustment Assistance Policy and Procedure Manual). Plaintiffs provide no evidence that TWC currently, as a matter of policy, approves training programs that consist only of remedial education, ifnot appropriate, or approves training programs that will not result in a worker being job ready if the training is completed successfully. Out of the thousands of applications for training programs TWC approves, Plaintiffs cite to only a handful where TWC allegedly did not approve a training program which would have resulted in the worker being job ready.25 Plaintiffs have failed to show there is a systemic violation of the Department 's policy that this Court can address, and summary judgment on this issue is not proper.
c. Tbe Department's Regulation at 20 C.F.R. § 617.23(c) Regarding
Methods of Training Is Properly Issued Plaintiffs claim that the Trade Act requires the Department to '''assure' that training is provided on-the-job 'insofar as possible.... See Summary Judgment Memo at 23. The Department agrees. The dispute, therefore, is over the meaning of this statutory mandate. In arguing that the regulations are in violation of the Trade Act, Plaintiffs jump to the baseless conclusion that the regulations differ in a significant way from the statute.
25 See Appendix A for the Department's response to worker affidavits.

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They do not. Plaintiffs ignore § 2296(a)(5), regarding what type of training the Secretary
may approve, and they ignore the plain meaning of the phrase "insofar as possible."
Plaintiffs' argument regarding on-the-job training ultimately fails because Plaintiffs
would like the statute to mean something it does not.
19 V.S.C § 2296(a) states, in part
Insofar as possible, the Secretary shall provide or assure the provision of such training on the job, which shall include related education necessary for the acqui sition of skills needed for a position within a particular occupation.
Section 2296(a)(5) adds that:
The training programs that may be approved under paragraph (1) include but are
1I0t limited to --
(A) on-the-job training, (8) any training program provided by a state pursuant to Section 1653 ofritle
29 or Title I of the Workforce Investment Act of 1998 [29 U.S.C.A. § 280 1 et seq.], (C) any training program approved by a private industry council established under section 1512 of Title 29,...
See 19 U.S.c. § 2296(a)(5)(A)-(F) (emphasis added). When read together and in context,
the phrases "insofar as possible" and "include but are not limited to," establish that while
there are a number of training options available under the Trade Act, on-the-job training
("OJT") should be considered first among these possible training options.
Moreover, the legislative history supports this conclusion. Interestingly, to
support their own conclusion, Plaintiffs cite to the Senate Report but omit a key sentence
from the Report:
While tire bill does not bar tire Secretaryfrom providing any type oftraining wlrich he may find appropriate, it clearly requires thaI the highest priority be given to developing and placillg displaced workers in trailling on-Ihe-job. The ultimate objective of training programs is the placement of a worker in actual employment. On-the-job training is, therefore, the most desirable type of training since it accomplishes this objective at the beginning rather than at the end of the

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process. The bill accordingly directs the maximum feasible use of training on the job.
S. REp. No. 93-1298 at 93 (1974), reprinted in 1974 U.S.C.C.A.N. 7186, 7279 (emphasis
added to lines Plaintiffs omit). The 1981 House Report reiterates this intent:
Under section 236(a) of existing law, the Secretary of Labor may. but is flat required to, approve training (on-the-job insofar as possible) for an adversely affected certified worker .. .. Insofar as possible, the Secretary of Labor shall provide or assure provision of training on the job, which shall include related education necessary to acquire skills needed for a position within a particular occupation...
H.R. REp. No. 97- 158 at 275 (1981) (emphasis added; parentheses in original). This
language expressly provides that OJT is to be given "the highest priority," while
maintaining that the Secretary is 1101 required to provide it.
The Department incorporates Congress' intention in its regulations, assuring that
OJT is considered first among all available training options. See 20 C.F.R.
§ 617.23(c)(I). The regulation states, in part:
(c) Methods o/training. Adversely affected workers may be provided either one or a combination of the following methods of training;
(1) Insofar as possible, priority will be given to on-the-job training, which includes related education necessary to acquire skills needed for a position within a particular occupation .. .including training for which the firm pays the costs. This ensures that on-the-job training provides the skills necessary for the individual to obtain employment in an occupation rather than a particular job at a specific site; and
(2) Institutional training, with priority given to providing the training in public area vocational education schools ifit is determined that such schools are at least as effective and efficient as other institutional alternatives...
20 C.F.R. § 617.23 (emphasis added).
While not claiming that the Trade Act requires OJT, Plaintiffs do claim that, in
violation of the Act, the Department's regulations reduce OJT to an option that state
agencies may ignore. This argument is spurious. The Act only requires that OJT be

24

• Case 3:04-cv-00400-FM Document 31

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provided "insofar as possible." The Department makes OJT a priority, insofar as possible. 26
Even if the Act is ambiguous, the Department's regulations with regard to OJT
constitute a pennissible construction of the statute. Chevron, 467 U.S. at 843; Coal
Employment Project, 889 F.2d at 11 31 (quoting K Mart, 486 U.S. at 291). "The court
must defer to the agency's interpretation so long as it is reasonable, consistent with the
statutory purpose, and not in conflict with the statute 's plain language." Coal
Employment Project, 889 F.2d at 11 31.
As stated in the Senate Report, "[tJhe ultimate objective of training programs is
the placement of a worker in actual employment." S. REp. No. 93-1298 at 93, reprinted
in 1974 U.S.C.C.AN. at 7279. The Department, as the agency entrusted to administer
the Trade Act, has detennined that the statute does not require that OJT be available in
every instance, and that balancing an individual's skill level and desires with the
avai lable training provides the best results in placing workers into employment. This is
certainly a reasonable interpretation. See Young v. e mty. Nutrition Inst., 476 U.s. 974,
98 1(1986) ("[T]o sustain [an agency's interpretation]. we need not find that it is the only
permissible construction that [the agency] might have adopted but only that [the
agency's] understanding of this very 'complex statute' is a sufficiently rational one to
preclude a court from substituting its judgment for that of[the agency).") (citing
orr 26 One of PlainlifTs ' arguments is thallhe "priority" assigned to in the regulations is "undefmed." See
Sununary Judgment Memo at 24. However, by defmition, a priority is "precedence, especially established by order of imponance or urgency" or "something afforded or deselVing prior attention." The American Heritage Dictionary of the English Language, Fourth Edition, 2000;
Ira http://dictionary.reference.comlsearch?q==priority. tenn is not defined in the regulation itself, a court
may rely on dictionary definitions. Uni ted States v. Sherburne, 249 F.3d 1121, 1126 (9th Cir. 2001). Clearly, a priority is something that deselYes to be considered first or given precedence, thus it is not 'undefined."

25

• Case 3:04-cv-00400-FM Document 31

• Filed 01/06/05 Page 26 of 27

Chemical Manufacturers Ass'n v. Natural Res. Defense Council, Inc., 470 U.S. 116, 125

(1985)); City oroaUas, Tex. v. FCC, 165 FJd 341, 346-47 (5th Cir. 1999)(citing

Chevron), The Department encourages states to foster OJI opportunities, and the

Department's policy is that OJT be presented to individuals as a first option, if available. 21

III. CONCLUSION

Plaintiffs cannot show that the Trade Act requires the relief they seek. In

addition, there are outstanding material facts in dispute, as outlined above and in

Appendix A. For the foregoing reasons, the Department respectfully requests that

Plaintiffs Motion for Summary Judgment be denied.

Respectfully submitted,

ALEXANDER FERNANDEZ Deputy Associate Solicitor Occupational Safety and Health

GARY BERNSTECKER JOANNA HULL Attorneys

~~cr)

ALE

1 S

Senior Tri AU ey

United States Department of Labor

Office of the Solicitor

200 Constitution Ave., NW

Room N-2454

Washington, D.C. 20210

202-693-5310

27 Indeed, Texas does present orr as a fllst option to individuals in Texas and in El Paso. Bueno Depo. at
47:13-25 (Exh. 30); Crawford Depo. at 83:24-84:9 (Exh. 33). See Appendix A for the Department's response to other facts related to OJT.

26

e 12/10/2004 13 : 20 FAX 2026935 466

SOl/OS H

Case 3:04-cv-00400-FM Document 31

• Filed 01/06/05 Page 27 of 27

I(J !JIILIIIV'

OXrlFI Ci\n : OF SE RVI(' E

!DAlY I herehy cer(iry (1",( 011 (his (ile

or D«clIlbcr, 2(X'4,,, trllC ,lid con'« (

\:vpy of the V.S. DI'Il:lrimcml M Lahor's Rr.~pon'ic to I' lainlirr.'i' Motion for SUIIHnao '

,Judgment and the U.S. I)l"Jm rtm ~u('s Mot ion for L CIIVC tu File in Exccsl'l of Tcn

Pilgt'S W;IS(;.1l/scd 10 b"dclivc/,oo clcclrnniclIlly ;Intl by U.S.maillolhe rolluwillg

counse l of record in this (';ISC:

C'lnllcn E. R(ldri !-:u~z
J~roml! w. Wcscvich
D. Michacl Dnlc Texas RioGr:mul! I.cg~11 Aid, lnc.
J:n I Te:«.ls 1\ vcnue
EI P<lSU, TX 7('90 I

Michael T. Kirkpatrick Public: Citizen Litigat ion GrouJl I(,()O 20,1• Sln:!,;t. N.W. WashingtolL. D.C . 200(J9

1&.;-- n",I'~ v-\y...v;
ALEXA [l~ ,A TS I~OS
S-':Ilior Trial AUl.lrncy

 . . ,

• Case 3:04-cv-00400-FM Document 32

• Filed 01/06/05 Page 1 of 23

I" "
,,{:?~~~~N THE UNITED STATES DISTRICT COURTBy

, o· I>'

RTHE WESTERN DISTRICT OF TEXAS

EL PASO DIVISION

\

\.;, SOCl ION DE TRABAJADORES

§

TERIZOS, JOSE DE LA CRUZ,

§

SANDRA MORA, RODRIGO MORIN, §

SOLEDAD RENTERIA, AND

§

MARISELA RODRIGUEZ,

§

Plaintiffs;

§

§

v.

§

§

U.S. DEPARTMENT OF LABOR,

§

Defendant.

§

Civil Action No. EP-04-CA-400-FM

REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

December 21,2004

Carmen E. Rodriguez (TX Bar No. 14417400) Jerome W. Wesevich (TX Bar No. 21193250) D. Michael Dale (OR Bar No. 77150) Texas RioGrande Legal Aid, Inc. 1331 Texas Avenue El Paso, Texas 79901 (915) 585-5100
Michael T. Kirkpatrick (DC Bar No. 486293) Public Citizen Litigation Group 1600 20th Street, NW Washington, DC 20009 (202) 588-1000 Attorneys for Plaintiffs

Case 3:04-cv-00400-FM Document 32

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TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES .................................................... ii
1. Introduction ............................................................ I
II. DOL Admits to Creating What is a Systemic Exception to the Training Completeness Requirement. ............................................... 3
III. 80% Wage Replacement Is Congress's Goal for Training, and DOL Has Failed to Regulate as Congress Requires to Ensure That This Goal is Pursued in the Training Approval Process. . ................................... 9
A. Congress Established 80% Wage Replacement as the Goal of Trade Act Training ................................................ 10
B. Congress Requires DOL to Regulate as Necessary to Pursue 80% Wage Replacement ........................................... 11
C. DOL Does Not Regulate Trade Act Training Approval to Pursue 80% Wage Replacement ........................................... 11
D. The Wage Replacement Injunction that Plaintiffs Seek Will Help Workers .... 12
IV. Congress Mandated that DOL Provide Trade Act Training On-The-Job Insofar as Possible, But DOL's Regulation "Makes OJT a Priority, Insofar as Possible." .................................................... 13
A. Congress Mandated that On-the-Job Training Be Provided Over Classroom Training ............................................... 13
B. On its Face, DOL's Regulation Fails to "Assure" That OJT Is Provided "Insofar as Possible" ....................................... 16
C. The Proposed OJT Injunction Would Expand Training Options for Workers .. 17
V. Conclusion ............................................................ 18

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TABLE OF AUTHORITIES

CASES

PAGE

Adkinson v. Inter-American Development Bank, 156 FJd 1335 (D.C. Cir. 1998) ............................................ 16

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1985) ...................................................... 2

Barmag Barmer MaschinenfabrikAG v. Murata Machinery, Ltd, 731 F.2d 831 (Fed. Cir. 1984) .............................................. 2

Chevron U.S.A., Inc. v. Natural Resources Def Council, 467 U.S. 837 (1984) ...................................................... 1

Employees ofChevron v. DOL, 298 F. Supp. 2d 1338 (Ct. Int'l Trade 2003) ................................... 2

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) ................................................ I, 11,15

Hampe v. DOL, 364 F.3d 90 (3d Cir. 2004) ................................................. 4

International Trading Co. v. United States, 306 F. Supp. 2d 1265 (Ct. Int'] Trade 2004) .................................. 14

International Union, United Automobile Workers v. Dole, 919 F.2d 753 (D.C. Cir. 1990) ............................................. 13

UA W v. Brock, 568 F. Supp. 1047 (D.D.C. 1983), affd in part, 816 F.2d 761 (D.C. Cir. 1987) . " ..... 2

United States v. Caceres, 440 U.S. 741 (1979) ...................................................... 3

United States v. Perry, 360 F.3d 519 (6th Cir. 2004) .............................................. 14

ii

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STATUTES AND LEGISLATIVE MATERIALS 5 U.S.C. § 706 ................................................................ 3 19 U.S.C. § 2291(a)(2) .......................................................... 7 19 U.S.C. § 2296(e) ......................................................... 2, 10 19 U.S.C. § 2296(a)(I) .......................... " " ' ' ' ' ............... 3,13,14,15 19 U.S.C. § 2296(a)(5) ......................................................... 14 19 U.S.c. § 2296(a)(9) ......................................................... II 19 U.S.C. § 2320 ............................................................. II Fed. R. Civ. P. 36(a) ........................................................... 4 S. Rep. No. 93-1298 (1975), reprinted in 1974 U.S.C.C.A.N. 7186 ..................... 13 S. Rep. No. 97-139 (1981), reprinted in 1981 U.S.C.C.A.N. 396 ....................... 10
REGULATORY MATERIALS 20 C.F.R. § 617.2 ........................................................... 2, 10 20 C.F.R. § 617.22(a)(2) ................................................... 3, 7, 11 20 C.F.R. § 617.22(f)(3) ........................................................ 7 20 C.F.R. § 617.23(a) ............................................. , ............. 8 20 C.F.R. § 617.23(c)(I) ............................... " ...................... 17 20 C.F.R. § 617.23(d)(3) ........................................................ 7 20 C.F.R. § 617.32(a)(4) ..... , ................................................. 12 20 C.F.R. § 617.42(a)(6) ....................................................... 12 20 C.F.R. § 617.52(a) .......................................... , . , , . , .. , , , ... 2, 11

iii

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In reply to the Department of Labor's Response to Plaintiffs' Motion for Summary Judgment (DOL Response), Plaintiffs would respectfully show the Court: I. Introduction
This case is not about matters committed to agency discretion under Chevron's second step as DOL argues; it is about three specific matters that Congress itself directly decided, and is properly resolved under Chevron's first step without deference to DOL's interpretation of the law. l Plaintiffs are entitled to summary judgment on all three issues.
First, DOL concedes that the law prohibits the approval of incomplete training such as stand-alone ESL and GED classes for workers who need vocational training, and DOL admits that it allows incomplete training to be approved under what it claims are limited circumstances. DOL argues only that its violation of the law is not "systemic," but DOL's policy creating an exception to the law is itself a systemic violation regardless of how many workers are affected, and in any event there is no genuine issue but that DOL's exception is not applied in a limited fashion.
Second, DOL concedes that 80% wage replacement is the goal of Trade Act training, and that Congress ordered DOL to issue all regulations necessary to implement the statute. DOL has no regulations that implement Congress's 80% wage replacement goal, and instead allows state agencies to reject the standard. Rather than respond to Plaintiffs' claim, DOL makes up a new 80% wage-replacement issue that is not before this Court, and then smites its own straw man.
Third, the Act requires that training be provided on-the-job whenever possible, and Congress expressed that requirement by repeatedly using mandatory terms. DOL responded with a regulation that allows on-the-job training (OJT) to be entirely ignored. DOL defends

I If Congress directly decided an issue, an agency's contrary interpretation of the law gets no deference. Chevron U.S.A., Inc. v Natural Resources De! Council, 467 U.S. 837, 842-43 & n.9 (1984); FDA v. Brown & Williamson Tobacco Corp, 529 U.S. 120, 132-33 (2000) (courts must look to each statute's text, structure, history, and purpose to decide whether Congress direetly decided an issue under Chevron); DOL Resp. at 4, 14.

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the regulation by citing congressional language that it claims softened Congress's directive, but that language does no such thing.
Throughout DOL's Response, the agency claims to draw on its expertise in applying the training statute in ways that enable limited English proficient (LEP) workers to enhance their skills as much as possible in light of the educational barriers they face? But the facts in this case are not seriously challenged by DOL, and they paint an entirely different picture.3 They show that DOL has consistently taken the low road when it comes to training LEP workers. DOL consistently applies the Trade Act in ways that increase the use of cheaper ESL and GED courses as substitutes for the bilingual vocational training that DOL knows these workers need.
As discussed below, Facts 71,81, and 96 should be the only facts necessary to conclusively establish that DOL violates the Trade Act in the three respects claimed by Plaintiffs, and Facts 40 through 62 show that DOL compliance with the law would improve training outcomes for some if

The parties agree that the Trade Act must be liberally construed to help workers return to "suitable employment" as this term is defined in 19 U.S.C. ~ 2296(e). DOL Resp. at IS, 19; 20 C.F .R. §§ 617.2 & 617 .52(a); UA W v Brock, 568 F. Supp. 1047, 1053 (D.D.C. 1983), afJ'd in part, 816 F.2d 761 (D.C. Cir. 1987). Unfortunately, DOL may not always be counted upon to apply the Trade Act in ways that help workers. See e.g Employees o/Chevron v. DOL, 298 F.Supp. 2d 1338, 1348-50 (Ct. Int'l Trade 2003) (This "case stands as a monument to the flaws and dysfunctions in the Labor Department's administration of the nation's trade adjustment assistance laws-for, while it may be an extreme case, it IS regrettahly not an isolated one .... [AJ growing line of precedent involving court-ordered certifications [evidences] the bench's mounting frustration with the Labor Department's handling of these cases. Whether the result of overwork, incompetence, or indifference (or some combination of the three). the Labor Department deprived workers of the job training and other benefits to which they are entitled.").
3 To facilitate ready access to all of the parties' arguments as to each fact, the attached Reply Statement of Facts collects in one place all of the facts that Plaintiffs claim are undisputed, DOL's response to each fact, and PlaintiiTs' reply to each response. Examination of this document shows that there is no genuine issue of material fact requiring a trial in this case. Nor is thcre apparently a dispute over the relevant evidence, for DOL's fact appendix largely consists of copies of the same documents submitted by Plaintiffs, which Plaintiffs deliberately selected to show that proof of the facts may be made largely through DOL's own statements and documents.
Under Rule 56, "a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or den ials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v Liberty Lobby, Inc., 477 U.S. 242, 256 (1985). Here, DOL either concedes the critical facts or rests upon conclusory denials lacking the factual basis required by Rule 56(e). With no evidcnee to contest Plaintiffs' thoroughly supported statements offact, DOL substitutes baseless objections and argumentation, none of which is sufficient under the rules to show that a genuine issue remains to be tried as to any of the stated facts. See Barmag Barmer Ma.l'chinenfabrik AG v. Murata Machinery, Ltd, 731 F.2d 831, 836 (Fed. Cir. 1984).
2

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not all LEP trade-dislocated workers. The injunction that Plaintiffs seek is not only necessary to secure DOL's compliance with Congress's decisions, but it is a modest means of achieving that compliance. In essence, the injunction would send DOL back to the regulatory drawing board to plan how it will fully comply with the law in cases where LEP workers quality for the training Congress prescribed. II. DOL Admits to Creating What is a Systemic Exception to the Training Completeness
Requirement. As to the applicable legal standard on training completeness, DOL concedes that the parties have no "dispute as to the Department's policy regarding this issue: the Department requires state agencies to approve training that renders an individual job ready." DOL Resp. at 17-18.4 DOL bases its entire defense upon whether a systemic violation of this standard exists that requires a remedy from this Court. Yet DOL fully admits that it allows state agencies to approve training that is not expected to render a worker fully job-ready under what it claims are limited circumstances. DOL Resp. at 18-19 ("there may be isolated instances in which, because of the time and monetary constraints of the Trade Act, incomplete training may be approved"); DOL

4 As an aside, DOL suggests that the training completeness requirement is more a creature of DOL's regulation than of Congress's direct choice. DOL Resp. at 16. But because the parties agree on what the legal standard established by the regulation is, the source of the training completeness requirement need not be decided in this case. When there is no questIOn of interpretation of an agency's regulation, federal courts enforce regulations against agencies under 5 U.S.C. § 706.1ust as they do statutes. United States v Caceres, 440 U.S. 741, 754 & 11.18 (1979) ("Agency violations of their OWI1 regulations, whether or not also in violation of the Constitution, may well be ineonsistent with the standards of agency action which the AP A directs the courts to enforce.").
Moreover, the statute's text-"reasonable expectation of employment following eompletion"-shows that Congress decided the training eompleteness issue. 19 U.S.C. § 2296(a)(1 )(C). DOL offers only its eonclusory assertion that Plaintiffs read this statutory text "out of eontext." DOL Resp. at 16 n.l3. It does not attempt to explain how an agency could determine that a worker has a "reasonable expectation of employment following completion of sueh training" when the training under consideration for approval does not provide all of the skills that the worker needs to be job ready. See also Faet 67 (DOL admits that the criteria of 19 U.S.C. § 2296(a)(J) are themselves the source of the requirement that no training may be approved unless it will render a worker "job ready."); Fact 75 (remedial education was approved as Mr. Trejo's Trade Aet training, and in the blank requiring an explanation of the souree of the "reasonable expectation of employment" requirement having been met, "after vocational training" is written). The history of the statute as reflected in DOL's eontemporaneous regulation, 20 C.F.R. ~ 617.22(a)(2), eonfirms that the decision was Congress's. PI. Mem. at 9 & n.7.
3

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Admission Nos. 19, 20, and 22 (PA-24, cited in Fact 71 ).5 It is this very policy of allowing an exception to the law that Plaintiffs claim is a systemic violation of the applicable legal standard, and that Plaintiffs seek to correct by the proposed injunction. See Hampe v. DOL, 364 FJd 90, 92 n.3, 95 (3d Cir. 2004) (summary judgment granting injunctive relief against DOL is ordered where DOL "knew of and condoned" a state agency's illegal policy under the Trade Act, "and even encouraged the policy").
DOL argues that its exception to the training completeness requirement is limited and necessary to protect workers. DOL Resp. at 19. But DOL's exception is neither limited nor necessary. Strict adherence to the training completeness requirement as written would not diminish any worker's access to training, and would improve training outcomes for many workers.
DOL's exception to the training completeness requirement is not limited, primarily because it does not appear in any formal DOL regulation or other policy statement. The exception is a wink and nod from DOL when state agencies approve incomplete training for LEP workers. E.g. Fact 70. Consequently, state agencies have no formal guidance on how to apply the exception, i.e. how to determine when a worker's pre-training skills "may be insufficient," or how to determine which ofthe available training programs provides "as many skills as possible." See Fact 71.
Historically, DOL has been well aware that the Texas Workforce Commission (TWC) has driven a truck through DOL's "limited" exception:
TAA training is limited to 104 weeks by law and the worker must complete the proposed program and be job ready within this period. Many of the affected workers in EI Paso required long-term training well beyond the 104 week period; thus necessitating a coordinated effort by all programs to provide the resources needed for a lengthy training. The training infrastructure was not in place to handle

5 In light of the language of these three admissions and the requirement of Fed. R. Civ. P. 36(a) that a party "shall specify so much of [each requcsted admission] as is true and qualify or deny the remainder," DOL's suggestion that it really "dented" the policy at issue in this case is laughable. See DOL Resp. at 19 n.19.
4

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the volume or the needs ofthis special group of workers. Most workers required some ESLIGED plus skill training. DOL Texas Trade Act Review (1114/2000) at 10 (PA-39); Facts 68-70. Yet DOL has not complained to TWC about this, demanded specific corrective action, nor formalized its exception in a more coherent policy that would limit how broadly the exception is applied. Facts 70-74; Hearing Transcript (10/20/2003) at 28:2-9 (PA-19) (DOL's counsel admitted in response to this Court's pointed question that he is unaware of any changes that DOL has made in its policies for Trade Act administration). DOL repeatedly urges the Court to ignore DOL's history of disregarding the training completeness requirement in El Paso,6 and to focus on the present. But the Court need look no further than DOL's Response to see that DOL not only expects to continue applying the policy exception articulated in Fact 71, but that the exception is "especially likely" to affect the LEP workers that comprise ATF' s membership. DOL Resp. at 19 & n.20; Fact 3. By attempting to justify its illegal exception on prudential grounds, DOL admits that the exception will continue to operate in Texas. Of course, DOL must admit that it allows less than complete training to be approved for some workers, because TWC conceded that it practices DOL's exception to the training completeness requirement. Fact 73. To understand how widely DOL's training completeness exception is being applied in El Paso, well past the 1997-2000 time period that DOL wishes to forget, the August 14, 2003 testimony of five-year veteran El Paso Trade Act case manager Gloria Candelaria is particularly relevant:

6 The evidence that TW C routinely approved incomplete Trade Act training for thousands of LEP workers in the 1997 to 2000 period, and did so with DOL's blessing, is thorough and conclusive, and includes DOL's admission at the October 20, 2003 hearing. Facts 68-76. For DOL to "assume arguendo" that this evidence is conclusive is utterly disingenuous. See DOL Resp. at 18 n.17.
5

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Q. Okay. Do you understand you - your testimony to be that, when you saw participants who needed vocational training, but also needed a lot ofESL and GED training, that you would recommend approval of a training contract, that ex- that consisted exclusively of ESL and GED courses, and wait until later to decide what vocational training would be approved for that worker? A. Yes, sir. Uh-huh.
Q. What is your estimate of the percentage of people, who came to you requesting Trade Act training, who were enrolled in ESL and GED training? A. Roughly my estimate would be, about 90 percent.
Q. Am I correct that there have been no changes that you're aware of, in the procedures that lead all the way up to your decision to recommend Trade Act training approval? A. Okay. The only changes that have taken place, is that we don't have the quality check people reviewing what we have submitted .... Q. But the policies that we've discussed today, as far as how you decide what training to recommend for approval, those have not changed? A. They haven't changed.
Candelaria Depo. at 21 :7-15,23:1-5,74:13-25 (PA-4), Fact 74. Thus, there is no genuine issue but
that DOL's exception to the training completeness requirement is not applied in a limited way in
EI Paso, at present or in the past. Facts 68-76.
DOL claims that approval of Mr. Trejo's training complied with the Trade Act because a
complete training program was ultimately provided to him. DOL Resp. at 20. But DOL does not
dispute that TWC approved remedial education as Mr. Trejo's only Trade Act training even when
the training approval form itself acknowledged that Mr. Trejo would have a reasonable expectation
of employment only "after vocational training." Approval of remedial education for Mr. Trejo
violated the training completeness requirement regardless of whether Mr. Trejo's tenacity
ultimately enabled him to get the complete training that he needed. Fact 75.
Next, DOL suggests that "ESLlGED" was named as the occupation for which Mr. Gilbert
was trained in March 2003 simply because ESLIGED may have been the only skill that Mr. Gilbert
needed to become job ready. DOL Resp. at 20 & n.23 (approving ofTWC's practice of naming
6

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ESLIGED as the occupation in these cases). Unfortunately, DOL's representation to this Court is directly at odds with its own regulations, which require that an occupation be named as the object of Trade Act training for every worker. 20 C.F.R. §§ 617.22(f)(3) ("a training program may consist of a single course or group of courses which is designed and approved by the State agency for an individual to meet a specific occupational goal"); 617.23(d)(3) ("In determining suitable training the State agency shall exclude certain occupations, where ... the occupation provides no reasonable expectation of permanent employment."). Because TWC declined to name a target occupation for Mr. Gilbert's Trade Act training, no "reasonable expectation of employment" determination could have been made, and his training was by definition incomplete. See also supra at 6-7 (Ms. Candelaria described what happened to Mr. Gilbert as standard practice). That in December 2004, DOL would defend TWC's treatment of Messrs. Trejo and Gilbert as consistent with the law only confirms the continuing need for injunctive relief in this case.
DOL's exception to the training completeness requirement is no more necessary than it is limited. DOL invites this Court to accept that some workers' education is so deficient that they cannot be trained for any occupation whatsoever in the two and one-half years allowed by the statute, even though everyone of those workers held a steady job before entering training. See 19 U.S.c. § 2291 (a)(2) (requiring 6 months' employment before layoff). DOL offers nothing but its own speculation in support of its argument, and fails entirely to state, let alone support, how many workers would fall into this "untrainable" category, nor what basis could accurately be used to make a determination of "untrainability." There is no reason in logic or evidence to suggest that if

7

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DOL enforces the training completeness requirement as written, this would result in fewer workers being approved for Trade Act training. 7
The Court has undisputed evidence before it, however, to establish that strict adherence to the training completeness requirement would improve training outcomes for at least some LEP workers. DOL itself claims that adequate bilingual training opportunities are available to LEP workers in EI Paso, and it told this Court that it is "horrified" that more workers are not in these programs. Facts 51-52. Thus, the parties agree that more workers in bilingual training programs as opposed to serial stand-alone ESLIGED training programs will result in better training outcomes for workers. See also Facts 49,62 (serial training has been criticized as a waste of millions of federal taxpayer dollars). Nor is there any genuine issue of fact but that bilingual training renders workers job-ready faster than serial training. Fact 54. There is no genuine issue of fact but that strict adherence to the training completeness requirement would result in more workers enrolling in bilingual training, and that bilingual training is more effective in rendering workers job ready in higher paying occupations than is serial training. Facts 48 to 55; PI. Mem. at 13-14.8 In sum, the record firmly establishes that requiring absolute training completeness will

7 Moreover, DOL's own Office ofInspector General (OIG) conducted a detailed audit of Trade Act administration and squarely blamed the absence a/training approval standards for hurting workers. DOL OIG 1993 Audit at 13-17 (PA-61); Fact 87. DO L's argument that diminishing the existing written standards for training approval by applying an unwritten cxception would help workers is thus inconsistent with the conclusion of its own OIG.
g DOL's attempted response to these facts appears at DOL Resp. 20 n.22. All arguments in DOL's foutnote 22 are irrelevant or wrong. That "remedial training is contemplated as approvable training under the Act" has nothing to do with which method of training produces better results for LEP workers, see Fact 67. DOL's training creation argument is not only irrelevant to which type of training is better for workers, it is wrong, because 20 C. F.R. § 617.23 (a) shows that DOL not only has an "obligation to create training programs," but that it has delegated that obligation to state agencies, and Fact 51 proves that DOL does not consider the creation of bilingual programs to be the obstacle in El Paso. Plaintiffs debunk DOL's training "choice" argument at PI. Mem at 12-13; Fact 40. DOL's argument that the "efficacy of each individual training decision is a factual contention" is irrelevant because what is at issue in this case IS whether approving incomplete serial training is better for workcrs than approving bilingual training that renders them fully job-ready. The fact that workers may appeal decisions to Statc courts has nothing to do with which training method is better. DOL concludes note 22 with a conclusory whopper: "This matter is not ripe for summary judgment if a decision hinges on the factual issue regarding bilingual vs. serial training." DOL presents nothing to indicate that
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increase the benefits that workers derive from bilingual training over the discredited serial training methods that are allowed under DOL's illegal policy as stated in Fact 71. III. 80% Wage Replacement Is Congress's Goal for Training, and DOL Has Failed to
Regulate as Congress Requires to Ensure That This Goal is Pursued in the Training Approval Process. Contrary to DOL's assertions, Plaintiffs have never claimed that the Trade Act requires that post-training employment guarantee an 80% replacement wage, nor have Plaintiffs claimed that DOL violates the Trade Act by failing to issue regulations that require a specific post-training wage rate. Indeed, Plaintiffs agree that there is no statutory requirement that post-training employment must result in 80% wage replacement. Because DOL fundamentally misstates Plaintiffs' claim, it devotes ten pages of its response to proving a point not at issue, and DOL largely fails to address Plaintiffs' actual claim-that DOL has fai led to regulate the training approval process in pursuit of the Trade Act's goal of returning dislocated workers to employment paying at least 80% of their prior wages.9 DOL agrees that 80% wage replacement is the goal of Trade Act training, but DOL never explains its failure to promulgate regulations requiring state agencies to pursue that goal when making training approval decisions. It is DOL's failure to comply with the statutory mandate to regulate, rather than a failure to require a particular outcome, that is at issue in this case.

such a "factual issuc" exists when it is DOL's duty to do so under Rule 56(e). See Facts 45-62; note 2, supra
9 While the 80% wage-replacement argument is DOL's most voluminous red herring, it by no means swims alone. For example. at page 16, DOL emphasizes that "there may be instances in which remedial edueation or ESL is all the traming that an individual needs to beeome 'job ready,'" even though Plaintiffs' training completeness argument is explicitly and exclusively directed at the overwhelming majority ofLEP workers who need both ESL and vocational training to become job ready. Facts 68-76. Next, at pages 21 and 22. DOL suggests that Plaintiffs' claims really belong in state court, when DOL previously conceded that this Court has jurisdiction to issue declaratory and injunctive reliefifit concludes that DOL's policies violate the Trade Act. DOL Brief at 5, Civil Action No. EP-02CA-131, Docket No. 75. And, at page 25, DOL explains that the "Department, as the agency entrusted to administer
the Trade Act, has determined that the statute does not require that on be available in every instance," even though
Plaintiffs have not argued that the Trade Act contains such a requirement. See also note 8, supra.
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A. Congress Established 80% Wage Replacement as the Goal of Trade Act Training DOL admits that 80% wage replacement is the goal of Trade Act training: While this program provides trade-impacted dislocated workers with job search assistance and, if necessary, retraining, income support services, job relocation, and out-of-area job search assistance, its ultimate goal is to place participants in employment that pays at least 80% of their pre-dislocation wage.
DOL Monitoring Letter to TWC (3/8/2001) at 4 (PA-45); Fact 79; DOL Resp. at 11. In seeking discretion under Chevron's step two, however, DOL claims that this goal is a creature of DOL, not of Congress. Id.; Fact 77. Not true. The same Congress that enacted 19 U.S.C. § 2296(e), which defines "suitable employment" in terms of 80% wage replacement, stated:
If the Secretary of Labor determines that there is no suitable employment available and suitable employment would be available if the adversely affected worker received the appropriate training, the Secretary may approve such training. S. REP. No. 97-139,534 (1981), reprinted in 1981 U.S.C.C.A.N. 396, 710, 800 (emphasis added). After Congress set the 80% wage replacement standard for suitable employment, DOL officially acknowledged: "The Act created a program of trade adjustment assistance (hereinafter referred to as TAA) to assist individuals, who became unemployed as a result of increased imports, return to suitable employment." 20 C.F.R. § 617.2 (emphasis added). DOL further admits that it has never promUlgated a definition for "suitable employment" in 20 C.F.R. § 617.2 that differs from the 80% wage replacement standard of 19 U.S.C. § 2296(e). DOL Admission No. 26; Fact 77. DOL's designated Trade Act policy spokesperson testified that he understands this goal to be "Congress' intent." Kooser Depo. at 106:1 to 107:3; Fact 77. Anyone of these facts conclusively establishes that Congress is the source of the 80% wage replacement goal for Trade Act training. In support of its claim that DOL alone established the 80% wage replacement goal, DOL says that suitable employment was absent from the express purposes that Congress stated for Trade

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Act training in the original 1974 Trade Act. DOL Resp. at 6 n.3. This argument only demonstrates a careless reading of the 1974 statute, for its text explicitly names "suitable employment" as the goal of Trade Act training. Fact 33. When Congress defined "suitable employment" in terms ofSO% wage replacement in 1981, DOL's regulation incorporated Congress's defInition of "suitable employment" into its statement of the sole purpose of Trade Act training. Facts 36-3S. B. Congress Requires DOL to Regulate as Necessary to Pursue SO% Wage Replacement
Congress ordered DOL to regulate Trade Act training as necessary to ensure that Congress's SO% wage replacement goal is pursued. 19 U.S.C. §§ 2296(a)(9) and 2320; 20 C.F.R. § 617.52(a). When interpreting an agency's enabling act under Chevron, the "inquiry into whether Congress has directly spoken to the precise question at issue is shaped, at least in some measure, by the nature of the question presented." Brown & Williamson, 529 U.S. at 159-60. The more an issue touches a statute's "core objective," the more courts search for a statutory construction that is consistent with Congress's expressed intent. Id. "Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute's daily administration." Id. C. DOL Does Not Regulate Trade Act Training Approval to Pursue 80% Wage Replacement
DOL has not issued any regulation stating what actions state agencies must take in the training approval process to pursue Congress's SO% wage replacement goal. Fact SI.10 Although DOL has implemented Congress's "suitable employment" goal for other Trade Act benefits in

10 DOL cites 20 C.F.R. § 617.22 in arguing that "the Department has promulgated regulations that set forth the criteria
to be used as a basis for making training determinations under 19 U.S.C. § 2296(a)(1 )." DOL Resp. at 4 n.2. But nothing in this regulation states what actions state agencies must take in the training approval process to pursue or consider Congress's 80% wage replacement goal. Fact 81.
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other regulations, see, e.g., 20 C.F.R. § 61732(a)(4) Gob search eligibility) and 20 C.F.R. § 617.42(a)(6) (relocation allowance eligibility), DOL admits that it "has carefully limited its use of suitable employment in the regulations" to avoid mentioning any wage replacement goal in its training regulations. DOL Resp. at 11 n.9. It is this absence of regulation for the Trade Act training benefit that Plaintiffs challenge in this case and that DOL, choosing instead to brief a nonissue, has failed to address.
Not only has DOL refused to issue a regulation implementing Congress's wage replacement goal for Trade Act training, it has explicitly informed state agencies that this goal is non-binding upon them! Fact 78 ("No objection.') This is why TWC feels free explicitly to reject Congress's 80% wage replacement goal in its official Trade Act administration policies, which DOL approved. Facts 89-94. D. The Wage Replacement Injunction that Plaintiffs Seek Will Help Workers
Clearly, DOL could issue regulations requiring consideration of the 80% wage replacement goal in the context of training approval decisions, and it is undisputed that DOL has failed to do so. Only DOL's mischaracterization of Plaintiffs' claim leads it to conclude that Plaintiffs seek regulations prohibiting the approval of any training not guaranteed to lead to employment at 80% of prior wages. DOL Resp. at 15 and n.ll. Nothing could be further from the truth. Plaintiffs seek to enjoin DOL to issue regulations that require state agencies at least to pursue Congress's wage replacement goal in their training approval decisions. These regulations do not demand a particular result as a condition of training, but would improve the training outcomes for LEP workers through the increased provision of bilingual vocational training instead of remedial education classes that carry no expectation of increased earning capacity after training. See PI. Mem. at 22-23 (describing four specific options available to DOL).
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IV. Congress Mandated that DOL Provide Trade Act Training On-The-Job Insofar as Possible, But DOL's Regulation "Makes OJT a Priority, Insofar as Possible." DOL succinctly states why Plaintiffs seek summary judgment: "The Act only requires that
OJT be provided insofar as possible. The Department makes OJT a priority, insofar as possible." DOL Resp. at 24-25 (emphasis in original). DOL never defines what its "priority" means in terms of how state agencies must choose between on-the-job training and classroom training when both are available to a worker and both meet the requirements of the Trade Act. Id. at 25 n.26. DOL provides no guidance to state ageneies as to how they are to choose among training options when both OJT and classroom training are available and meet all statutory requirements for a worker. Fact 96. Under this regulatory scheme, state agencies are free to disregard on-the-job training as a Trade Act training option. That is what TWC did for years on end. Facts 97-100. DOL knew this and allowed it. Fact 101. PlaintitTs seek summary judgment that DOL's regulatory scheme illegally diminishes the training options available to dislocated workers. A. Congress Mandated that On-the-Job Training Be Provided Over Classroom Training
Congress unambiguously decided that "insofar as possible, the Secretary shall provide or assure the provision of [Trade Act] training on the job," and Congress reiterated that its statutory text "directs the maximum feasible use of training on the job." 19 U.S.C. § 2296(a)(1); S. REP. No. 93-1298 at 93, reprinted in 1974 U.S.C.C.A.N. at 7279 (emphasis added). The words "shall," "assure," and "directs" all carry mandatory force, and do not confer discretion, thus keeping this case under Chevron '8 first step. International Union, United Auto. Workers v. Dole, 919 F.2d 753, 756 (D.C. Cir. 1990) ("Considering the frequency with which it uses the two words, Congress can be expected to distinguish between 'may' and 'shall."'). What these words require of DOL is explicitly superlative, i.e. do everything that is "possible" or "feasible" to assure that training is

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provided on the job.ll Thus, Plaintiffs submit that the plain meaning of the words chosen by Congress is that Trade Act training must be provided on the job when it is available to a worker and meets all requirements of the Trade Act.
DOL argues the contrary, claiming that this same statutory text vests it with discretion to approve classroom training over on-the-job training when both are available. DOL does not offer any explanation of how "shall," "assure," or "directs" can be consistent with DOL's interpretation of the statutory text in § 2296(a)(1 ). Instead, DOL points to three congressional statements that it claims support its position, none of which do.
First, DOL cites the phrase "the training programs that may be approved under paragraph (1) include but are not limited to" those listed in 19 U.S.c. § 2296(a)(5), and argues that this text confers discretion in choice of training methods. But the list of training options in § 2296(a)(5) is in no way inconsistent with the specific directive to the Secretary contained in § 2296(a)(1), and § 2296(a)(5) contains no words that indicate any modification of Congress's on-the-job training directive in § 2296(a)(1). See United States v. Perry, 360 F.3d 519, 535 (6th CiL 2004) ("One of the most basic canons of statutory interpretations is that a more specific provision takes precedence over a more general one."); Int'l Trading Co. v. United States, 306 F.Supp. 2d 1265, 1269 (Ct. Int'l Trade 2004) ("A canon of statutory construction is that a statute should be read to avoid internal inconsistencies."). Also, DOL admits that § 2296(a)(5) does not override the training completeness requirement in § 2296(a)(1), so there is no reason why § 2296(a)(5) should override the on-the-job training requirement of § 2296(a)(l) either. See Fact 67.
Next, DOL cites the following passage from the legislative history:

II Congress has directed agency action "as practicable" at least 557 times, and it has directed agency action "as possible" at least 259 times. WESTLAW search ofU.S.C.A. Database (search ofTE((agency commis! department secretary) Ip "as practicable").
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While the bill does not bar the Secretary from providing any type of training which he may find appropriate, it clearly requires that the highest priority be given to developing and placing displaced workers in training on-the-job. The ultimate objective of training programs is the placement of a worker in actual employment. On-the-job training is, therefore, the most desirable type of training since it accomplishes this objective at the beginning rather than at the end of the process. The bill accordingly directs the maximum feasible use oftraining on the job. DOL Resp. at 23-24. DOL points to the phrase "While the bill does not bar the Secretary from providing any type of training which he may find appropriate," and claims that this confers discretion upon DOL to approve classroom training over on-the-job training. But DOL's reading
is inconsistent with the remainder of the same sentence upon which DOL relies, it is inconsistent with the last sentence in the same paragraph, and it is inconsistent with the plain meaning of § 2296(a)(l). See DOL Resp. at 9 n.6 ("A permissive statement in a Senate report cannot change the statute Congress enacted."). Tn fact, the phrase on which DOL relies has a more limited meaning that raises no inconsistency. It only observes the fact that the statute does not include
language prohibiting the Secretary from approving training that the Secretary finds to be appropriate, so that the sentence is accurately paraphrased as: "Congress did not express its preference for on-the-job training in prohibitory terms, i. e.) 'the Secretary may not ...,' but rather did so in positive terms, i.e., 'the Secretary shall assure training on the job insofar as possible.'"
This reading of the sentence at issue gives meaning to all terms and renders none of them inconsistent, a result that must be sought whenever possible in construing contemporaneous language. Brown & Williamson, 529 U.S. at 133.
Finally, DOL points to language from the Trade Act's 1981 legislative history, stating that "Under section 236(a) of existing law, the Secretary of Labor may, but is not required to, approve training (on-the-job insofar as possible) for an adversely affected certified worker ...." DOL Brief at 24. But the law is settled that a later Congress may not modifY the statute enacted by a prior
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Congress using legislative history alone. Adkinson v. Inter-American Development Bank, 156 FJd 1335, 1342 (D.C. Cir. 1998) ("If the enacted intent of a later Congress cannot change the meaning of an earlier statute, it should go without saying that the later unenacted intent cannot possibly do so."). In this case, the 1981 Congress did not even attempt to change the meaning of the 1974 Congress's statutory text. DOL invites this Court to read the phrase "is not required to" as modifying "on-the-job insofar as possible" but this is not how the sentence is structured. The phrase "is not required to" modifies "training," which accurately describes "existing law" before 1981, when Trade Act training was not an entitlement as it is today. Facts 33-35. This passage merely observes that no type of training was an entitlement before 1981, and has nothing to do with Congress's preference for on-the-job training when training is approved. The fact that the passage appears within Congress's report of existing law, not within its subsequent report of what Congress intends the law to be, shows that the passage cannot effect the change in the statute that DOL seeks.
In sum, DOL has identified no language that dilutes Congress's requirement that DOL "shall provide" Trade Act training on the job "insofar as possible." B. On its Face, DOL's Regulation Fails to "Assure" That OJT Is Provided "Insofar as Possible'
There is no genuine dispute that DOL fails to assure that Trade Act training is provided on the job insofar as possible. While DOL argues that its regulation is consistent with the statute, the evidence of record contains DOL's admission that its regulation is weaker than the statutory standard. Fact 102.12 Even entirely apart from Fact 102, DOL admits that even when OJT is

12 DOL objects that Fact 102 "is meant to lead one to the eonclusion that the Department admits that its regulations related to on-the-Job training violate the statute." But the evidence itself, not Plaintiffs' statement of the evidence, is what must "lead one to the conclusion that the Department admits that its regulations related to on-the-joh training violate the statute." DOL designated Mr. Kooser under Rule 30(b)(6) to speak on its behalf regarding DOL's Trade Aet policies, Fact l4(c), and he testified:
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available to a trade-affected worker and meets all requirements of the Trade Act, and is thus indisputably "possible," DOL does not require state agencies to approve it. Fact 96. DOL's Response itself repeatedly confirms DOL's intent to step back from the statute's absolute requirement. DOL Resp. at 24-25 ("priority, insofar as possible") (emphasis in original); id. at 23 (OJT "should be considered first among [the list of] possible training options"); id. at 26 ("the Department's policy is that OJT be presented to individuals as a first option"); but see DOL Response to Fact 96 ("Mr. Kooser testified that the Department requires states to do all that is possible to provide training on-the-job in the context of that state."). 13 C. The Proposed OJT Injunction Would Expand Training Options for Workers
DOL attempts to justify its reading of the statute by explaining that "balancing an individual's skill level and desires with the available training provides the best results in placing workers into employment." DOL Resp. at 25. Plaintiffs entirely agree that this balance is essential, but without training options there is no balance to be struck. Plaintiffs have sued DOL

Q. When you provide training to either your regional offices or to state Trade Act administrators, what do you tell them about on-the-job training? A. I tell them exactly what's in the regulations, that insofar as possible they are to put emphasis on on-the-job training, because that's what it says. That's what the requirement is. Q. Do you agree that there is a difference between insofar as possible putting emphasis on on-the-job training on the one hand and on the other [hand] insofar as possible provide training? The first says insofar as possible put an emphasis on it and the other one says insofar as possible do it. Do you agree that there's a difference there? A. Yes, insofar as possible they should do it, insofar as possible. Q. But you agree that the two options that I described, insofar as possible put an emphasis on it and insofar as possible do it, those are two different things, right? A. Somewhat, yes. Q And the insofar as possible do it is stronger than the insofar as possible put an emphasis on it. A. That's correet. That's what I meant to say. Kooser Depo. at 163:4 to 164: I 0 (PA-l3). The word "emphasis" was unmistakably ehosen by Mr. Kooser as his synonym for the word "priority" in 20 C.F.R. § 617 .23(c)(1), and the fact that he ehose a synonym does nothing to diminish the devastating impact of his testimony upon DOL. See DOL Resp. at 26 n.26 (defining "priority" in terms of its synonyms "precedence," "importance," and "urgency").
13 DOL aetually claims that TWC satisfies the "first option" standard simply by including a statement about OJT in a video that workers watch as a group before they ever see a case manager. DOL Resp. at 26 n.27; see also Fact 98. This mocks Congress's command that DOL assure that O.IT be provided insofar as possible.
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over failing to provide on-the-job training under its current regulatory scheme precisely to ensure that the available training options are as expansive as required by law. There is no genuine dispute but that through August 2003 over 17,000 workers qualified for Trade Act training in El Paso, and TWC did not provide Trade Act training on the job to a single one of them nor attempt to do so. Facts 23, 97-100. Nor is there a genuine dispute but that DOL knows that its current regulatory scheme provides cost and administrative disincentives to state agencies to provide training on-thejob. Fact 105. This, of course, means that state agencies may not provide training on the job for reasons much less honorable than achieving "the best results" for workers, and much less defensible. In sum, DOL's existing regulatory scheme is not only facially inconsistent with Congress's unequivocal command, but in practice it has proved that DOL does not assure that Trade Act training is provided on the job insofar as possible.
The injunction sought by Plaintiffs would leave to DOL, in the first instance, the decision as to how it will respect Congress's directive. DOL has many options available to it that will expand workers' access to on-the-job training as Congress commanded, including without limitation telling state agencies how they are expected to evaluate whether on-the-job training is appropriate for a worker, and how the choice oftraining options is to be made when multiple options meet the Trade Act's requirements for a particular worker. V. Conclusion
The training at issue here is desperately needed by thousands of workers whose jobs were sacrificed for the sake of free trade and who were promised a remedy under the Trade Act. DOL's administration of the law fails to improve the job skills ofLEP workers. The injunction sought by Plaintiffs requires no more than straightforward compliance with the statute, and will enable DOL to focus specifically on what rules are needed for training approval when qualified workers do not
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speak English. DOL has failed to name any reason in fact or law as to why this case should not be resolved by issuing the proposed order that Plaintiffs' submitted with their summary judgment motion.
Respectfully submitted, TEXAS RIOGRANDE LEGAL AID, INC.

Dated: December 21, 2004

/
Carmen E. Rodriguez (T Jerome W. Wesevich (T No. 21193250) D. Michael Dale (OR Bar No. 77150) 1331 Texas Avenue El Paso, Texas 79901 (915) 585-5100 Fax: (915) 544-3789
Michael T. Kirkpatrick (DC Bar No. 486293) Public Citizen Litigation Group 1600 20th Street, N. W. Washington, D.C. 20009 (202) 588-1000
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE
I hereby certify that I caused a true and correct copy of the foregoing document to be served upon the following counsel of record instantly by electronic mail on December 21, 2004:
Alexandra Tsiros Office of the Solicitor U.S. Dept. of Labor 200 Constitution Ave., N.W., Rm. N-2564 Washington,D.C. 20210

19

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEX;\,.S" , " '; '_, /:1;;rt~ 'J

EL PASO DIVISION

'" "-" '- / - J

ASOCIACION DE TRABAJADORES
FRONTERIZOS, et. al., Plaintiffs,

) )

'TJ ,"_-,; -:,'.. ~,,~T~,;'~, ~'./ I ~J: ',: l~Y

)

) Civil Action No.

v.

) EP-04-CA-0400-FM

)

UNITED STATES DEPARTMENT

)

OF LABOR,

)

Defendant.

)

THE DEPARTMENT OF LABOR'S SUR~REPLY TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT 1. The Department maintains that the discretionary actions it has undertaken are properly reviewed under a Chevron II analysis. However, even under the Chevron I analysis "a court 'may reverse an agency's interpretation of an unambiguous statute only
if it does not conform to the plain meaning of the statute.' " EI Paso Electric Co. v.
FERC, 201 FJd 667,670 (5th Cir. 2000) (emphasis added). Plaintiffs have failed to carry their burden of establishing that the Secretary's regulations do not conform to the plain meaning of the Act. In fact, in order to subvert the Act's plain meaning and thwart Departmental regulations, Plaintiffs present a convoluted argument based on incomplete readings of the transcripts submitted, congressional intent, and the Act itself.
2. Plaintiffs' contention that the Department has not put certain facts at bar into dispute is without merit. As a threshold matter, Plaintiffs' citations to the records are merely conjecture and do not accurately restate the testimony elicited during the various

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depositions.! As such, they are of no use. Notwithstanding Plaintiffs' failure, however,

the Department has presented more than sufficient rebuttal evidence in Appendix A of its

Response. Moreover, Plaintiffs have provided no evidence that training was unlawfully

denied to any individual. Plaintiffs have not established that there are no material facts in

dispute, as is their burden.

3. Plaintiffs believing that their individual training determinations were inadequate

have a remedy in State court. See DOL Response at pp. 21-22.

4. With regard to complete training, or the "job ready" requirement found in 20

C.F.R. § 617.22(a)(2)(i), the Department reemphasizes that any exceptions made are

limited.

5. Ms. Candelaria's testimony, used by Plaintiffs as evidence that the exception to

the job ready requirement is not limited, actually demonstrates that any training an

individual requests is considered and is generally only disapproved if the individual does

not meet the training provider's enrollment criteria. Ms. Candelaria never agrees that she

provided incomplete training to a large number of individuals. See Exhibit A, Candelaria

Excerpt, pp. 29-30; 36 (offered a "fasttrack" program for individuals with low English

levels); pp. 38-43 (describing individual assessments); pp. 44-45 (describing available

jobs for someone with limited English); pp. 48 & 50 (training based on applicant's

interest, among other things).

I While "mere allegations or denials" of facts may not be enough to pass muster under Rule 56(e), this does not mean that issues of material facts are to be resolved conclusively in favor of the party asserting its existence, but rather, "all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-9 (1986) (quoting First Nat'! Bank of Arizona v. Cities Services Co., 391 U.S. 253, 288-89 (1968).
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Simply because the "exception" is not in a formal regulation or policy does not

mean it is not limited, and Mr. Kooser's testimony shows that States are continually

given training on all Trade Act training issues. See Exhibit B, Kooser Excerpt, pp. 55-56.

6. With regard to Mr. Gilbert, there is no way to determine, from the one page

provided, what training Mr. Gilbert needed or requested. Further, 20 C.F.R.

§ 617.22(f)(3) states that training must be designed for the individual "to meet a specific

occupational goal." There is no requirement that an occupation be named on the State

form. The Department contends that the facts surrounding Mr. Gilbert's and Mr. Trejo's

training are in dispute, and beyond these two examples, Plaintiffs have not shown that

there is a systemic problem.

7. There is no statutory requirement that training lead to wages at 80% of the individual's prior wages, and Plaintiffs agree.2

8. Mr. Kooser stated that in regularly conducted regional training, States are given

direction regarding all six criteria in 19 U.S.C. § 2296(a). See Exhibit B, pp. 55-56. Ms.

Candelaria stated that she always gave individuals the estimated job market pay rate for

the occupation the individual was considering. See Exhibit A, p. 25.

9. The Department's regulations on on-the-job training (OJT) are consistent with the

statute, despite Plaintiffs' allegations to the contrary. Plaintiffs would like Mr. Kooser to

have said something he did not. Mr. Kooser states that OJT is to be a first choice when

presenting training to individuals. See Exhibit B, pp. 157-166. Mr. Kooser also states

that it is difficult to get employers to offer OJT, and that any training approval is based on

2 The Department has never agreed that this was a binding Congressional goal.
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the individual worker. See Exhibit B, pp. 165-168; pp. 71-74, 90-92 (States must comply with regulations); p. 88 (States required to explore training opportunities). 10. The regulations are consistent with the statute and they are consistent with the legislative history Plaintiffs attempt to distinguish. Plaintiffs ignore the words "insofar as possible" in the statute and "feasible" in the legislative history, instead focusing on "shall" in § 2296(a). The first full sentence of the legislative history Plaintiffs quote reads: "While the bill does not bar the Secretary from providing any type of training which he may find appropriate, it clearly requires that the highest priority be given to

developing and placing displaced workers in training on-the-job." Plaintiffs' Reply at 15.

The regulations use almost identical language: "Insofar as possible, priority will be given to on-the-job training ... " 20 C.F.R. § 617.23(c)(1). Plaintiffs would like the Court to believe this dilutes the meaning in the statute; however this is consistent with Congress' intent. Plaintiffs arguments simply defy logic -- how can making something a priority make it less desirable? 11. The statistics Plaintiffs point to in Exhibit 83 to their Motion for Summary Judgment do not prove that OJT is available nor do they prove that individuals desire and qualify for it. The OJT Contracts List3 shows some OJT contracts (approximately 40 total), but not all ran concurrently. The contracts were staggered, most lasting a maximum of a few months and all ending between 2000 and 2003. Only 104 individuals were placed in OJT in 3 years - and these placements were under the Workforce Investment Act, not the Trade Act.

3 Several lists are provided at Exhibit 83; the list entitled "OJT Contracts Between ACS and Companies" is a partial overlap with the other list provided in that Exhibit.
4

• Case 3:04-cv-00400-FM Document 33

• Filed 01/20/05 Page 5 of 6

12. Plaintiffs infer that individuals are not given any options for training under the

Trade Act. Plaintiffs' Reply at 17 ("...without options there is no balance struck.").

However, Plaintiffs have yet to prove that there are no options for training. Testimony

from Ms. Bueno and Ms. Candelaria, as previously cited, shows that individuals are

individually assessed and are given choices for training.

Respectfully Submitted,

ALEXANDER FERNANDEZ Deputy Associate Solicitor Occupational Safety and Health

GARY BERNSTECKER Attorney

@\'~fF~
ALEXA1'!DTS S Senior Tria Attorney

United States Department of Labor Office of the Solicitor 200 Constitution Ave., NW Room N-2454 Washington, D.C. 20210 202-693-5310

5

• Case 3:04-cv-00400-FM Document 33

• Filed 01/20/05 Page 6 of 6

CERTIFICATE OF SERVICE
I hereby certify that on this 20th day of January, 2005, a true and correct copy of the U.S. Department of Labor's Sur-Reply to Plaintiffs' Motion for Summary Judgment was caused to be delivered electronically and via certified mail, return receipt requested to the following counsel of record in this case:
Carmen E. Rodriguez Jerome W. Wesevich D. Michael Dale Texas RioGrande Legal Aid, Inc. 1331 Texas Avenue El Paso, TX 79901
Michael T. Kirkpatrick Public Citizen Litigation Group 1600 20th Street, N.W. Washington, D.C. 20009

6

 U.S. District Court [LIVE] Western District of Texas (El Paso) CIVIL DOCKET FOR CASE #: 3:04-cv-00400-FM

CLOSED

Asociacion de Traba, et al v. U.S. Department of L Assigned to: Judge Frank Montalvo Demand: $0 Cause: 28:1331 Fed. Question: Fair Labor Standards

Date Filed: 10/26/2004 Date Terminated: 12/30/2005 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Asociacion De Trabajadores Fronterizos

represented by Carmen Elena Rodriguez Attorney at Law 1331 Texas Avenue El Paso, TX 79901 (915) 585-5100 Fax: 915/533-4108 Email: crodriguez@trla.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

D Michael Dale 917 S.W. Oak, Ste 426 Portland, OR 97205 (503)525-8454 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jose A. De La Cruz

Michael T. Kirkpatrick Public Citizen Litigation Group 1600 20th Street, NW Washington, DC 20009 (202) 588-1000 Fax: (202) 588-7795 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carmen Elena Rodriguez (See above for address) LEAD ATTORNEY

Plaintiff Sandra Mora
Plaintiff Rodrigo Morin
Plaintiff

ATTORNEY TO BE NOTICED
D Michael Dale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carmen Elena Rodriguez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
D Michael Dale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerome W. Wesevich Litigation Coordinator Texas RioGrande Legal Aid, Inc. 1331 Texas Avenue El Paso, TX 79901 (915) 585-5100 Fax: (915) 533-4108 Email: jwesevich@trla.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carmen Elena Rodriguez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
D Michael Dale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerome W. Wesevich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Soledad Renteria
Plaintiff Marisela Rodriguez
V. Defendant U.S. Department of Labor

represented by Carmen Elena Rodriguez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
D Michael Dale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerome W. Wesevich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carmen Elena Rodriguez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
D Michael Dale (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jerome W. Wesevich (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alexander Fernandez U.S. Department of Labor 200 Constitution Ave., NW Room N-2464 Washington, DC 20210 (202) 693-5300 Fax: 202/693-5319 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Ann Tsiros

U.S. Department of Labor 200 Constitution Ave. NW Room N2464 Washington, DC 20210 (202) 693-5300 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary E. Bernstecker U.S. Dept. of Labor 200 Constitution Ave., NW Room N 2101 Washington, DC 20210 (202) 693-5710 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary K. Stearman United States Department of Labor Office of the Solictor 200 Constitution Ave., NW Room N-2700 Washington, DC 20210 (202) 693-5770 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gilberto Garcia U.S. Department of Labor 200 Constitution Ave., NW Room N-2464 Washington, DC 20210 (202) 693-5300 Fax: 202/693-5319 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joanna Hull US Department of Labor 200 Constitution Ave., NW Room N-2454 Washington, DC 20210 202-693-5310 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Magdalena G. Jara Assistant U.S. Attorney 700 E. San Antonio Street Suite 200 El Paso, TX 79901 (915) 534-6884 Fax: 915/534-3490 Email: magdalena.jara@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/26/2004 10/26/2004 11/05/2004
11/05/2004
11/05/2004
11/05/2004
11/05/2004
11/05/2004
11/05/2004 11/08/2004

# Docket Text
Case assigned to Judge Frank Montalvo (em) (Entered: 10/27/2004)
1 Complaint filed. Filing Fee: $ 00 Receipt # 00 (Pages: 10) (em) (Entered: 10/27/2004)
2 Motion by U.S. Department of L for more definite statement or in the alternative, to strike Plaintiff's Post-Severance Complaint (md) (Entered: 11/05/2004)
3 Motion by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez for summary judgment (md) (Entered: 11/05/2004)
4 Memorandum by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez in support of motion for summary judgment [3-1] (md) (Entered: 11/05/2004)
5 Statement of material facts as to which there is no genuine facts by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez (md) (Entered: 11/05/2004)
6 Appendix for memorandum in support [Volume l of ll4-1] by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez (md) (Entered: 11/05/2004)
7 Appendix for memorandum in support Volume ll of ll[4-1] by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez (md) (Entered: 11/05/2004)
8 Motion by U.S. Department of Labor to stay its response to Plaintiff's Motion for Summary Judgement (md) (Entered: 11/08/2004)
9 Response by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez motion for more definite statement or in the alternative, to strike Plaintiff's Post-Severance

11/09/2004 11/09/2004 11/10/2004
11/10/2004
11/10/2004 11/17/2004 11/18/2004 11/18/2004 11/22/2004 11/24/2004 11/29/2004 11/29/2004 11/29/2004 11/30/2004

Complaint [2-1], motion to stay its response to Plaintiff's Motion for Summary Judgement [8-1] (md) (Entered: 11/08/2004)
10 Response by U.S. Department of Labor to motion response [9-1] (md) (Entered: 11/12/2004)
11 Response by U.S. Department of Labor to motion response [9-1] (md) (Entered: 11/12/2004)
12 Motion by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez for leave to file a sur-reply in opposition to defendant's motion for a m ore definite statement or to strike (cr) (Entered: 11/12/2004)
13 Order denying motion for more definite statement or in the alternative, to strike Plaintiff's Post-Severance Complaint [2-1], granting in part, denying in part motion to stay its response to Plaintiff's Motion for Summary Judgement [8-1] and shall file its response on or before December 10, 2004 and defendant shall file its answer on or before November 22, 2004 signed by Judge Frank Montalvo (md) (Entered: 11/12/2004)
14 Order that all counsel previously admitted pro hac vice in EP-02-CV-131FM are hereby admitted pro hac vice in EP-04-CV-400-FM signed by Judge Frank Montalvo (md) (Entered: 11/12/2004)
15 Motion by U.S. Department of L for (Joanna Hull) to appear pro hac vice (md) (Entered: 11/17/2004)
16 Order granting motion for (Joanna Hull) to appear pro hac vice [15-1] signed by Judge Frank Montalvo (md) (Entered: 11/19/2004)
17 Motion by Asociacion de Traba for (Michael T. Kirkpatrick ) to appear pro hac vice (md) Modified on 11/19/2004 (Entered: 11/19/2004)
18 Answer by U.S. Department of Labor (md) (Entered: 11/23/2004)
19 Motion by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez for (D.Michael Dale) to appear pro hac vice (md) (Entered: 11/24/2004)
20 Order granting motion for (Michael T. Kirkpatrick ) to appear pro hac vice [17-1] signed by Judge Frank Montalvo (md) (Entered: 11/30/2004)
21 Order denying motion for leave to file a sur-reply in opposition to defendant's motion for a m ore definite statement or to strike [12-1] signed by Judge Frank Montalvo (md) (Entered: 11/30/2004)
Pro Hac Vice Filing Fee: $ 25.00 Receipt # 365969 (md) (Entered: 11/30/2004)
22 Order granting motion for (D.Michael Dale) to appear pro hac vice [19-1]

12/10/2004 12/21/2004 12/21/2004
12/29/2004 01/03/2005
01/06/2005 01/06/2005 01/06/2005
01/06/2005 01/06/2005 01/20/2005 01/20/2005

signed by Judge Frank Montalvo (md) (Entered: 12/01/2004)
23 Motion by U.S. Department of L for leave to file a response in excess of ten pages (md) (Entered: 12/13/2004)
24 Motion by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez for leave to file a summary judgment reply in excess of five pages (cr) (Entered: 12/22/2004)
25 Notice of filing "Reply statement of material facts as to which there is no genuine issue" by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez (cr) (Entered: 12/22/2004)
26 Motion by U.S. Department of L for leave to file surreply to Plaintiff's reply memorandum in support of Plaintiffs' motion for Summary Judgement (md) (Entered: 12/29/2004)
27 Response by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez motion for leave to file surreply to Plaintiff's reply memorandum in support of Plaintiffs' motion for Summary Judgement [26-1] (md) (Entered: 01/03/2005)
28 Order granting motion for leave to file a response in excess of ten pages [23-1] signed by Judge Frank Montalvo (md) (Entered: 01/06/2005)
29 Order granting motion for leave to file a summary judgment reply in excess of five pages [24-1] signed by Judge Frank Montalvo (md) (Entered: 01/06/2005)
30 Order granting motion for leave to file surreply to Plaintiff's reply memorandum in support of Plaintiffs' motion for Summary Judgement [261] plaintiff is granted leave to file a response to deft. surreply until February 11, 2005 and a hearing requested for Summary judgement is granted and will be set at a later date signed by Judge Frank Montalvo (md) (Entered: 01/06/2005)
31 Response by U.S. Department of L motion for summary judgment [3-1] (md) (Entered: 01/06/2005)
32 Response by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez in support of motion for summary judgment [3-1] (md) (Entered: 01/06/2005)
33 Sur-Relpy by U.S. Department of Labor to motion for summary judgment [3-1] (md) (Entered: 01/20/2005)
Pro Hac Vice Filing Fee: $ 25.00 Receipt # 366283 (md) (Entered: 01/21/2005)

02/01/2005 04/22/2005
04/29/2005 05/06/2005 05/18/2005 05/20/2005 05/24/2005 05/24/2005 06/02/2005
06/03/2005 08/12/2005 09/16/2005
10/07/2005

34 Response by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez to motion response [33-1] (md) (Entered: 02/01/2005)
35 Order for a status conference to be held concurrently with a Status Confernece with case number EP-02-CV-131; parties shall confer and advise the Court by April 29, 2005 of a date most convenient to them from the following, April 26-29; May 5-6,13-20,23-26,31 or June 1-3 signed by Judge Frank Montalvo (md) (Entered: 04/22/2005)
36 Letter/Correspondence submitted by U.S. Department of L regarding: status confernce (md) (Entered: 05/02/2005)
37 Order Motion hearing motion for summary judgment [3-1] for 2:00 5/24/05 signed by Judge Frank Montalvo (md) (Entered: 05/09/2005)
38 Motion by U.S. Department of L for (Gary K. Stearman ) to appear pro hac vice (md) (Entered: 05/18/2005)
39 Order granting motion for (Gary K. Stearman ) to appear pro hac vice [381] signed by Judge Frank Montalvo (md) (Entered: 05/23/2005)
40 Minutes of proceedings for motion hearing conducted on 5/24/05 by Judge Montlavo. Court Reporter: Benavides (md) (Entered: 05/25/2005)
Motion hearing held for the following motions: [3-1] (md) (Entered: 05/25/2005)
41 Notice of filing by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez regarding Slided Used in Plaintiff's Summary Judgement Presentation (md) (Entered: 06/02/2005)
42 Order referring case to mediation to the Honorable Edward Leavy, mediation shall be complete by the end of July ot middle of August 2005 signed by Judge Frank Montalvo (md) (Entered: 06/03/2005)
43 Notice of filing regarding Mediation Status by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez, U.S. Department of L (md) (Entered: 08/15/2005)
44 Notice of filing regarding First Supplemental Notice of Mediation Stauts by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez, U.S. Department of L (md) (Entered: 09/16/2005)
45 Notice of Second Supplemental Notice of Mediation Staus filing by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez, U.S. Department of L (md) (Entered: 10/11/2005)

11/07/2005
12/02/2005
12/07/2005 12/16/2005 12/29/2005
12/30/2005 12/30/2005 12/30/2005

46 Notice of filing by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez, U.S. Department of Labor regarding Mediation Status (md) (Entered: 11/08/2005)
47 Notice of filing by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez regarding Fifth Supplemental Notice of Mediation Status (md) (Entered: 12/05/2005)
48 Order setting status conference at 10:00 12/19/05 signed by Judge Frank Montalvo (md) (Entered: 12/07/2005)
49 Order REMOVING STATUS CONFERNECE FROM CALENDAR signed by Judge Frank Montalvo (md) (Entered: 12/16/2005)
50 Motion by Asociacion de Traba, Jose A. De La Cruz, Sandra Mora, Rodrigo Morin, Soledad Renteria, Marisela Rodriguez, U.S. Department of L to dismiss (cr) (Entered: 01/03/2006)
51 Order granting motion to dismiss [50-1] signed by Judge Frank Montalvo (cr) (Entered: 01/03/2006)
52 Judgment signed by Judge Frank Montalvo (cr) (Entered: 01/03/2006)
Case closed (cr) (Entered: 01/03/2006)

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June 17, 2004

Workers Who Lost Factory Jobs After NAFTA Sue Department of Labor for Violating Trade Act Training Law
Government Broke Law by Not Providing Vocational Training to Thousands of Workers Whose Jobs Were Outsourced
WASHINGTON, D.C. – The U.S. Department of Labor (DOL) has systematically violated a law requiring it to provide job retraining to workers who have lost their jobs because of trade agreements, according to a lawsuit filed today by Texas RioGrande Legal Aid and Public Citizen on behalf of Asociación de Trabajadores Fronterizos (the Association of Border Workers, or ATF).
The law, the Trade Act of 1974, creates a Trade Adjustment Assistance program for workers who lose their jobs to foreign competition. Workers are to receive training so they can obtain a job that pays at least 80 percent of what the workers made previously. However, the DOL instead has approved remedial English classes for thousands of Hispanic workers despite the fact that these classes do nothing to help the workers learn new job skills.
The DOL’s own Office of Inspector General documented the waste of more than $100 million federal taxpayer dollars on ineffective English classes in El Paso, Texas, alone. As a result, Hispanic workers who lose good jobs to overseas competition often end up in minimum wage jobs that they could have obtained even without the DOL’s remedial education classes.
“The Department of Labor’s mismanagement of trade laws that require retraining of U.S. workers has hurt not only thousands of workers and their families but also the entire economy of El Paso, Texas – the city hit hardest by NAFTA layoffs,” said Guillermo Glenn, director of ATF.
Added attorney Carmen Rodriguez of Texas RioGrande Legal Aid, “First the workers are stunned by sudden job loss, and then the promise of job training turns into a bureaucratic nightmare and no real job skills. The so-called ‘training benefits’ are of no benefit at all to Spanish-speaking workers.”
The suit alleges that the DOL violates the law by: 1) allowing state agencies, including the Texas Workforce Commission, to approve incomplete training; 2) allowing state agencies to renounce Congress’ 80 percent wage replacement objective for all Trade Act training; and 3) making on-the-job training – which the law requires as much as possible – an option that state agencies may ignore.
Records show that the DOL pays roughly $8,000 to train each worker in other states, but only $2,000 to train the average worker along the U.S.-Mexico border. A high proportion of training for workers with limited English skills consists exclusively of English as a Second Language courses, which cannot by themselves provide the job skills that workers need to return to the workforce.
Spanish-speaking workers need bilingual skills training that provides the vocational skills needed to work in a specific occupation. Bilingual training is used throughout the United States to train Englishproficient workers in occupations ranging from truck driving and phlebotomy to precision machining. Yet the DOL persists in approving cheaper English classes as a substitute for vocational training.
“The Trade Adjustment Assistance program is questionable enough as far as its effectiveness in helping displaced workers,” said Michael Kirkpatrick, an attorney for Public Citizen who is representing ATF. “But now the agency charged with implementing the law has blown it. Congress should know how incompetently the DOL manages these training programs as it considers accelerating outsourcing of U.S. jobs as part of the Central American Free Trade Agreement.”
ATF seeks an order directing the DOL to adopt policies that comply with Congress’ statute, to enforce those policies and to provide adequate training for workers who were denied it, particularly workers who need bilingual skills training to remain productive members of the U.S. labor force.

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Public Citizen Press Room The lawsuit is available at http://www.citizen.org/documents/complaintfinal.pdf. ###

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Jan. 4, 2006

In Settlement, Department of Labor Agrees to Provide Required Job Training to Workers Whose Jobs Were Outsourced
Lawsuit Alleged That Government Broke Law by Approving Training That Failed to Meet Statutory Requirements
WASHINGTON, D.C. – A federal judge in El Paso has entered an order ending a lawsuit filed by Spanish-speaking workers who lost their jobs in the wake of NAFTA and sued the U.S. Department of Labor (DOL) because they were not provided the vocational training promised by Congress in the Trade Act. The order provides that the federal court will enforce the parties’ settlement agreement, ending three years of litigation that involved federal courts in Washington, D.C., and El Paso.
The workers’ organization, the Association of Border Workers, was represented by Public Citizen and Texas RioGrande Legal Aid. A joint press conference to describe the settlement will be held at 10:30 a.m. on Friday, Jan. 6, at the Upper RioGrande Workforce Development Board Conference Room, Wells Fargo Bank Building, 221 N. Kansas, Suite 1000, El Paso.
The lawsuit stemmed from violations of the Trade Act of 1974, which created a Trade Adjustment Assistance program for workers who lose their jobs to foreign competition. Under the program, workers are supposed to receive training so they can obtain jobs that pay at least 80 percent of what they made previously. However, the DOL offered only remedial English classes for thousands of Hispanic workers even though the classes did not prepare the workers for new jobs. The DOL’s own Office of Inspector General documented the waste of more than $100 million of federal money on ineffective English classes in El Paso alone.
The suit alleged that the DOL violated the law by: (1) allowing state agencies, including the Texas Workforce Commission, to approve incomplete training; (2) allowing state agencies to renounce Congress’ 80 percent wage replacement objective for Trade Act training; and (3) making on-the-job training – which the law requires as much as possible – an option that state agencies could ignore.
The settlement requires the DOL and the Texas Workforce Commission to spend $6.5 million on job training for El Paso workers who received deficient training. This money will enable hundreds of Spanish-speaking workers to access real job training, albeit years after they should have had it.

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In addition, the settlement requires policy changes nationwide. “The settlement is a significant victory because it ends all of the agency practices that the workers claimed were illegal,” said Public Citizen attorney Michael Kirkpatrick. “Now all trade-dislocated workers will be given an opportunity to train for replacement jobs as Congress intended. The government is finally responding to the problem.”
Under the settlement, the DOL will implement the following policies nationwide:
• The settlement explicitly recognizes that dual-language training programs – in which necessary occupational skills and English are taught in a single integrated curriculum – are most effective for workers with limited proficiency in English and should be developed even though they are more costly. Before the settlement, the government had no policy on this critical issue.
• The settlement establishes that workers have a right to make an “informed choice” among available training programs.
• The settlement requires state agencies to pursue Congress’ 80 percent wage replacement goal. In the past, even though Congress set 80 percent as the wage replacement goal of training purchased with federal money, the DOL never required state agencies to do anything to achieve this goal and allowed Texas to reject the goal.

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Public Citizen Press Room
• The settlement requires training to make each worker job-ready in a named occupation, ending the illegal practice of naming a remedial education course (i.e., “English as a Second Language”) as the occupation for which a worker is being trained.
• The settlement requires state agencies to develop on-the-job training opportunities, respecting Congress’ directive that training be provided on-the-job insofar as possible. In El Paso, on-the-job training had never been attempted in 10 years.
The original lawsuit is available here.
A copy of the settlement is available here.
Other documents related to the case are available here.
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http://www.citizen.org/pressroom/pressroomredirect.cfm?ID=2106[5/27/2010 6:11:14 PM]


On October 26, 2004, the Asociacion de Trabajadores Fronterizos and five of its individual members filed a lawsuit under the Trade Act of 1974, 19 U.S.C. §§2296 & 2320, against the U.S. Department of Labor (DOL) in the U.S. District Court for the Western District of Texas, El Paso Division.  The plaintiffs, represented by attorneys from Texas RioGrande Legal Aid and Public Citizen Litigation Group asked the court for declaratory judgment, injunctive relief and litigation costs, claiming that the Department of Labor violated the Trade Act in its administration of job benefits by providing remedial education instead of bilingual vocational training sufficient to make participants job-ready upon completion. 

Plaintiiff Asociacion de Trabajadores Fronterizos (ATF) is a membership organization comprised of workers whose jobs were lost or threatened by foreign competition resulting from NAFTA. Its name translates to "Association of Border Workers."  The members of ATF are primarily garment workers of Mexican national origin who communicate in Spanish and have limited English-communication abilities. The named plaintiffs Plaintiffs are members of ATF whose primary residences are in El Paso County, Texas. 

Defendant Department of Labor (DOL) is the federal agency responsible for administering the Trade Adjustment Assistance job training benefits to displaced workers provided for under the Trade Act of 1974. 

On April 3, 2002, Plaintiffs, along with another party, first filed a lawsuit against the DOL that also named the Texas Workforce Commission (TWC), the Upper Rio Grande Workforce Development Board, and the commissioners and directors of these organizations as defendants. This lawsuit, filed in the U.S. District Court for the Western District of Texas El Paso Division, included the Trade Act violations in its causes of action.  This case is not in our database, but its docket number is 3:02-CV-00131. Judge Frank Montalvo severed the claims against the DOL on October 20, 2004 according to a motion by the plaintiffs. 

Prior to the severance, ATF filed a lawsuit on June 17, 2004, as the sole plaintiff, against the DOL under the Trade Act in the U.S. District Court for the District of Columbia.  On October 20, 2004, the order to transfer the case to the Western District of Texas was granted, with the transfer occurring on December 1, 2004. This case is also not in our database, but its docket number is 1:04-CV-00993. These events resulted in the two concurrent cases in the Western District of Texas under Judge Montalvo. 

Plaintiffs filed the complaint in this case on October 26, 2004 and filed a motion for summary judgment on November 5, 2004.  Following a hearing on the summary judgment motion on May 24, 2005, the case was referred to Judge Edward Leavy for mediation on June 03, 2005.  On December 29, 2005, upon completion of mediation, Plaintiffs filed an unopposed motion to dismiss that included an executed copy of the settlement agreement reached by the parties. 

On December 30, 2005, Judge Frank Montalvo granted Plaintiffs' motion to dismiss the case with prejudice and entered a final judgment. In the final judgment, the Court retained jurisdiction to enforce the terms the settlement agreement. The motion to dismiss, corresponding order and the final judgment were filed under this case and the original Texas case. Therefore, the other Texas case concluded with the same settlement agreement and closed on December 30, 2005. 

Under the terms of the settlement agreement, the DOL and other defendants must dedicate $6 million in funding to establish a project for Limited English-Proficient (LEP) displaced workers in the El Paso Area. This program will make vocational training, customized training, on-the-job training and remedial education available to eligible participants. Policy changes included recognition of the effectiveness of, and a focus on, dual-language training and a required 80% wage replacement goal.  The DOL was also required to issue the Training and Employment Guidance letter within 30 days of the agreement. In addition, counsel for the Plaintiffs, Texas RioGrande Legal Aide, was awarded $30,000 for litigation costs.

