Slip Op. 09-60
UNITED STATES COURT OF INTERNATIONAL TRADE
__________________________________________
FORMER EMPLOYEES OF INVISTA, S.A.R.L., :
Plaintiffs, :
v. : Court No. 07-00160
U.S. SECRETARY OF LABOR, :
Defendant. :
___________________________________________
[Remanding action to U.S. Department of Labor for second redetermination on remand.]
Dated: June 18, 2009
Ruskin Moscou Faltischek, P.C. (Thomas A. Telesca), for Plaintiffs.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, and Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Carrie A. Dunsmore); Stephen R. Jones, Office of the Solicitor, U.S. Department of Labor,
Of Counsel; for Defendant.
OPINION
RIDGWAY, Judge:
In this action, former employees of the Chattanooga, Tennessee plant operated by Invista,
S.a.r.l. (“the Workers”) contest the determinations of the U.S. Department of Labor denying their
petition for certification of eligibility for trade adjustment assistance (“TAA”) and alternative trade
adjustment assistance (“ATAA”). The determinations at issue include the Labor Department’s
original denial of the Workers’ petition, as well as the agency’s denial of the Workers’ request for
reconsideration, and the agency’s negative determination on remand. See 72 Fed. Reg. 7907, 7909
(Feb. 21, 2007) (notice of denial of petition); 72 Fed. Reg. 15,169 (March 30, 2007) (notice of denial
Court No. 07-00160 Page 2
of request for reconsideration); 73 Fed. Reg. 32,739 (June 10, 2008) (notice of negative
determination on remand).
Now pending before the Court is the Workers’ Renewal of their Motion for Judgment Upon
the Agency Record. See generally Plaintiffs’ Memorandum in Support of Motion for Judgment
Upon Agency Record (“Pls.’ Brief”); Plaintiffs’ Memorandum in Support of Renewal of the Motion
for Judgment Upon Agency Record (“Pls.’ Renewal Brief”); Plaintiffs’ Memorandum in Further
Support of Renewal of the Motion for Judgment Upon Agency Record (“Pls.’ Reply Brief”). The
Government opposes the Workers’ motion, maintaining that the Labor Department’s denial is
supported by substantial record evidence and is otherwise in accordance with law. See generally
Defendant’s Memorandum in Opposition to Plaintiffs’ Motion for Judgment Upon the Agency
Record (“Def.’s Brief”).
Jurisdiction lies under 28 U.S.C. § 1581(d)(1) (2000).1 For the reasons set forth below, this
matter must be remanded to the Labor Department once again, for further consideration.
I. Background
The trade adjustment assistance laws are generally designed to assist workers who have lost
their jobs as a result of increased import competition from – or shifts of production to – other
countries, by helping those workers “learn the new skills necessary to find productive employment
in a changing American economy.” Former Employees of Chevron Prods. Co. v. U.S. Sec’y of
Labor, 26 CIT 1272, 1273, 245 F. Supp. 2d 1312, 1317 (2002) (quoting S. Rep. No. 100-71, at 11
1
Except as otherwise noted, all statutory citations herein are to the 2000 edition of the United
States Code. Similarly, all citations to regulations are to the 2006 edition of the Code of Federal
Regulations.
Court No. 07-00160 Page 3
(1987)); see generally Former Employees of BMC Software, Inc. v. U.S. Sec’y of Labor, 30 CIT
1315, 1316-20, 454 F. Supp. 2d 1306, 1307-11 (2006) (detailing history and policy underpinnings
of trade adjustment assistance programs).
TAA programs entitle eligible workers to receive benefits that may include employment
services (such as career counseling, resume-writing and interview skills workshops, and job referral
programs), vocational training, job search and relocation allowances, income support payments, and
a health insurance coverage tax credit. See generally 19 U.S.C. § 2272 et seq. (2000 & Supp. II
2002). In addition, older workers may be eligible for a wage insurance benefit, known as alternative
trade adjustment assistance (“ATAA”).2
The trade adjustment assistance laws are remedial legislation and, as such, are to be
construed broadly to effectuate their intended purpose. UAW v. Marshall, 584 F.2d 390, 396 (D.C.
Cir. 1978) (noting “general remedial purpose” of TAA statute, and that “remedial statutes are to be
liberally construed”); see also Fortin v. Marshall, 608 F.2d 525, 526, 529 (1st Cir. 1979) (same);
Usery v. Whitin Machine Works, Inc., 554 F.2d 498, 500, 502 (1st Cir. 1977) (emphasizing
“remedial” purpose of TAA statute); BMC, 30 CIT at 1320-21 n.9, 454 F. Supp. 2d at 1311 n.9
(collecting additional cases).
2
ATAA allows workers aged 50 or older, for whom retraining may not be appropriate, to
accept reemployment at a lower wage and receive a wage subsidy. Workers who qualify for ATAA
are eligible to receive 50% of the difference between their new and old wages, up to a maximum of
$10,000 over two years. See generally GAO Report 04-1012, “Trade Adjustment Assistance:
Reforms Have Accelerated Training Enrollment, But Implementation Challenges Remain” (Sept.
2004) at 2, 10.
Court No. 07-00160 Page 4
Moreover, “[b]ecause of the ex parte nature of the certification process, and the remedial
purpose of the [TAA] program,” the Labor Department is obligated to “conduct [its] investigation[s]
with the utmost regard for the interest[s] of the petitioning workers.” Local 167, Int’l Molders and
Allied Workers’ Union, AFL-CIO v. Marshall, 643 F.2d 26, 31 (D.C. Cir. 1981); see also BMC, 30
CIT at 1321, 454 F. Supp. 2d at 1312 (collecting additional cases). Thus, while the Labor
Department is vested with considerable discretion in the conduct of its investigations of trade
adjustment assistance claims, “there exists a threshold requirement of reasonable inquiry.” Former
Employees of Hawkins Oil & Gas, Inc. v. U.S. Sec’y of Labor, 17 CIT 126, 130, 814 F. Supp. 1111,
1115 (1993); see also BMC, 30 CIT at 1321, 454 F. Supp. 2d at 1312 (and authorities cited there).
Courts have not hesitated to set aside agency determinations which are the product of perfunctory
investigations. See BMC, 30 CIT at 1321 n.10, 454 F. Supp. 2d at 1312 n.10 (cataloguing numerous
opinions criticizing Labor Department’s handling of TAA cases).
II. The Facts of This Case
Until their termination on January 31, 2007, the Workers in this case were employed as part
of the Nylon Apparel Filament Fibers Group at the Chattanooga, Tennessee plant operated by
Invista, S.a.r.l. At the time of their termination, the Workers processed orders for nylon apparel
filament fiber (“apparel fiber”) in support of apparel fiber production at a related plant in Monterrey,
Mexico. See A.R. 2; 73 Fed. Reg. at 32,739; see also Pls.’ Brief at 4; Def.’s Brief at 6-7.3 The
3
The administrative record in this action consists of two parts – the initial Administrative
Record (which the Labor Department filed after this action was commenced), and the Supplemental
Administrative Record (which was filed after the Labor Department’s negative determination on
remand).
Court No. 07-00160 Page 5
apparel fiber had been manufactured at the Chattanooga plant, until domestic production ceased and
all such production was shifted to the Monterrey, Mexico site in 2004. See A.R. 5-6, 45-46; 73 Fed.
Reg. at 32,739-40. Since that shift, only nylon performance filament fiber (“performance fiber”)
has been produced at the Chattanooga plant. See C.S.A.R. 8.
The 2004 shift in production to Mexico led to widespread layoffs of production workers and
support personnel at the Chattanooga plant. See C.S.A.R. 7-8. Invista management filed a petition
for TAA and ATAA benefits on behalf of the terminated workers, which the Labor Department
granted. Specifically, the Labor Department certified as eligible for TAA and ATAA all Invista
workers “engaged in employment related to the production of,” inter alia, apparel fiber “who
became totally or partially separated from employment on or after June 7, 2003, through two years
from the date of certification [i.e., two years from August 20, 2004].” See 69 Fed. Reg. 54,320,
54,321 (Sept. 8, 2004) (original certification) (emphasis added); A.R. 5-6 (TAA/ATAA certification
of Invista, S.a.r.l., dated Aug. 20, 2004); S.A.R. 35-36 (confirming that 2004 TAA/ATAA
certification expired on August 20, 2006).
As indicated by the language of the certification itself (quoted above), the Invista employees
covered by the 2004 TAA/ATAA certification included not only those engaged in the actual
production of apparel fiber, but also more than one hundred service workers who had supported that
production in various capacities. See A.R. 1-2; 30-32, 45; C.S.A.R. 7-8; 73 Fed. Reg. at 32,739-40.
The two parts of the administrative record are separately paginated. Both parts include
confidential business information. Citations to the public record are noted as “A.R. ____” and
“S.A.R. ____,” as appropriate, while citations to the confidential record are noted as “C.A.R. ____”
and “C.S.A.R. ____.”
Court No. 07-00160 Page 6
The Workers at issue here survived the 2004 lay-offs, and continued their work at the
Chattanooga site in support of apparel fiber production, even after that production shifted to Mexico.
See A.R. 1-2; 30-32, 45; 73 Fed. Reg. at 32,739-40. However, on November 14, 2006 – a mere three
months after the 2004 TAA/ATAA certification expired – the Workers were notified that they would
be terminated effective January 31, 2007. See A.R. 35, 45-46.
In mid-December 2006, Invista’s Plant Manager filed the pending TAA/ATAA petition on
behalf of the Workers, who include a Product Coordinator as well as three Customer Service
Representatives. See A.R. 1-3, 36-37; see also 69 Fed. Reg. at 54,321; 73 Fed. Reg. at 32,739
(noting that TAA/ATAA petition was filed December 15, 2006). In the TAA/ATAA petition, the
Plant Manager attested that the Workers’ terminations were “a continuation of the shift in production
to Mexico as described in [the 2004 TAA/ATAA certification] that expired August 20, 2006.” See
A.R. 2; see also 73 Fed. Reg. at 32,739. The Plant Manager further explained that – notwithstanding
the 2004 shift in production to Mexico – “all orders [for apparel fiber had] continued to be processed
from the United States” up to that time, but that such work was now going to be transferred to
“CSR’s [i.e., Customer Service Representatives] located in South America.” See A.R. 2. The
TAA/ATAA petition also noted that two of the subject Workers were age 50 or older, that their
skills “are not easily transferable,” and that “[c]ompetitive conditions within the industry are
adverse.” Id.
The Labor Department denied the Workers’ TAA/ATAA petition. See 72 Fed. Reg. at 7909
(denying TAA/ATAA petition on grounds that “[t]he workers’ firm does not produce an article as
required for certification”); A.R. 30-32. The Labor Department stated that, to be eligible for TAA
benefits, workers seeking certification “must work for a ‘firm’ or appropriate subdivision that
Court No. 07-00160 Page 7
produces an article domestically and there must be a relationship between the workers’ work and
the article produced by the workers’ firm or appropriate subdivision.” See A.R. 30-31 (citing 19
U.S.C. § 2273). The Labor Department found that the Workers “were engaged in marketing
activities,” that “domestic production of an article within . . . [Invista’s] Nylon Apparel Filament
Fibers Group [had] ceased more than one year [before],” and that the petitioning Workers thus “were
not in support of domestic production within the requisite one year period.” See A.R. 31. The Labor
Department therefore concluded that the Workers could not be “considered import impacted or
affected by a shift in production of an article.” Id. Because the Labor Department determined that
the Workers were not eligible for TAA, the Workers’ petition for ATAA was similarly denied. Id.
One of the petitioning Workers requested that the Labor Department reconsider its
determination. See A.R. 35-39. The request for reconsideration underscored that the Workers
“missed the opportunity of receiving . . . [TAA and ATAA] benefits by less than 3 months,”
emphasizing that they would have been covered by the 2004 TAA/ATAA certification – and thus
“would have been able to have the opportunity of receiving the benefits of . . . TAA [and ATAA]”
– if only Invista management had notified them of their impending terminations “in August, versus
November of 2006.” See A.R. 36. Echoing a point made by Invista’s Chattanooga Plant Manager
in the TAA/ATAA petition, the request for reconsideration stated that the Workers’ layoffs were –
in essence – the culmination of the 2004 shift in production of apparel fiber to Mexico, the “direct
result of the . . . apparel machines going to Mexico, the loss of textile manufacturing in the U.S. the
bigger picture.” Id.; see also id. at 38 (explaining that Workers’ layoffs were “a direct result of the
textile industry going to developing countries and the loss of textile manufacturing in the U.S.”).
Court No. 07-00160 Page 8
With no further investigation, the Labor Department denied the Workers’ request for
reconsideration, stating that the request neither “present[ed] evidence that the Department [had]
erred” nor “contain[ed] new facts of a substantive nature bearing on the [agency’s initial]
determination.” See A.R. 45-46; 72 Fed. Reg. at 15,169. In denying reconsideration, the Labor
Department acknowledged the Workers’ claim that their terminations were “a direct result of the
same shift in production to Mexico . . . which resulted in workers certification for TAA in 2004.”
See A.R. 45-46; see also A.R. 35-38. However, the Labor Department stated that, pursuant to
agency regulations, it only “considers production that occurred one year prior to the date of the
petition.” See A.R. 46. The Labor Department therefore concluded that – because the Chattanooga
plant ceased production of apparel fiber in 2004 – the Workers’ TAA/ATAA petition was “outside
of the relevant period.” Id.
This action ensued. The Workers filed a Motion For Judgment Upon the Agency Record,
which argued, inter alia, that the Labor Department had denied the Workers’ TAA/ATAA petition
based on the agency’s determination that the Workers “were not in support of domestic production
within the requisite one year period,” but that the agency had failed to identify the authority for the
asserted one-year requirement. See Pl.’s Brief at 10; see also id. at 4 (asserting that agency
“established an arbitrary one-year cut off date”). In addition, although the Workers’ motion did not
expressly request that the agency extend the 2004 TAA/ATAA certification, the Workers faulted
the Labor Department for “fail[ing] to adequately consider the relevancy of the prior certification.”
See Pl.’s Brief at 10.
Conceding that, by its terms, the one-year limitation in 29 C.F.R. § 90.2 appears to apply
only in cases where layoffs result from “increased imports,” the Government sought – and was
Court No. 07-00160 Page 9
granted – a voluntary remand to permit the Labor Department to determine whether the one-year
time bar also applies in “shift of production” cases such as this. See generally Defendant’s Consent
Motion for Voluntary Remand; Order (March 27, 2008). The Government further advised that, if
the Labor Department determined that the one-year limitation did not apply, the agency would
reconsider the Workers’ eligibility for TAA and ATAA. See Defendant’s Consent Motion for
Voluntary Remand.
In its Negative Determination on Remand, the Labor Department abandoned its reliance on
the one-year time limitation in 29 C.F.R. § 90.2. Instead, the Labor Department based its negative
determination on its conclusion that the Workers’ terminations “[were] not related to the shift in
production of apparel nylon filament to Mexico in 2004,” but, rather, were the result of “a business
decision to improve the efficiency of . . . [Invista’s] customer service organization.” See 73 Fed.
Reg. at 32,739-40. In light of its conclusion that “the shift of production to a foreign country was
not a cause of the workers’ separations,” the Labor Department reserved judgment as to “the impact
of the fact that no production took place at the subject firm during the twelve month period prior to
the filing of the petition.” See 73 Fed. Reg. at 32,739-40. Finally, because the Labor Department
determined that the Workers were not eligible for TAA, their petition for ATAA was denied as well.
See 73 Fed. Reg. at 32,739-40.
III. Analysis
As explained in section I above, “because of the ex parte nature of the certification process,
and the remedial purpose of the [TAA/ATAA] program,” the Labor Department is obligated to
“conduct [its] investigation with the utmost regard for the interests of the petitioning workers.” Int’l
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Molders and Allied Workers Union, 643 F.2d at 31. Indeed, “the Labor Department is charged with
an affirmative obligation to proactively and thoroughly investigate all TAA [and ATAA] claims filed
with the agency – and, in the words of its own regulations, to ‘marshal all relevant facts’ to make
its determinations.” BMC, 30 CIT at 1372, 454 F. Supp. 2d at 1357 (citing 29 C.F.R. § 90.12). It
is thus no exaggeration to characterize the Labor Department’s role in the development of a
TAA/ATAA claim as “pivotal.” BMC, 30 CIT at 1372, 454 F. Supp. 2d at 1357.
In stark contrast to the Labor Department officials who are charged with the day-to-day
administration of the complex statutory and regulatory scheme, petitioning workers and their
(typically pro bono) counsel cannot reasonably be expected to have knowledge of the frequently-
changing, nuanced, and “sometimes esoteric criteria” for TAA/ATAA certification. Former
Employees of IBM Corp. v. U.S. Sec’y of Labor, 29 CIT 951, 956, 387 F. Supp. 2d 1346, 1351
(2005); see also id. (rejecting agency’s argument that because workers did not allege certain facts,
agency was not obligated to make further inquiry, and holding that – to the contrary – “it is
incumbent upon Labor to take the lead in pursuing the relevant facts”).4 Accordingly, it would be
absurd and inconsistent with the Labor Department’s duty to petitioning workers to require that a
TAA/ATAA claimant “specify with precision the statutory provisions or the corresponding
regulations under which he is seeking benefits.” BMC, 30 CIT at 1372 n.91, 454 F. Supp. 2d at
1357 n.91 (quoting Akles v. Derwinski, 1 Vet. App. 118, 121 (1991)). Claimants should not be
4
See generally BMC, 30 CIT at 1372, 454 F. Supp. 2d at 1357 (noting that “Congress
designed TAA as a remedial program, recognizing that petitioning workers would be (by definition)
traumatized by the loss of their livelihood; that some might not be highly-educated; that virtually
all would be pro se; that none would have any mastery of the complex statutory and regulatory
scheme; and that the agency’s process would be largely ex parte”).
Court No. 07-00160 Page 11
required “to develop expertise in laws and regulations on . . . [TAA/ATAA] before receiving any
[benefits].” Id. (quoting Akles, 1 Vet. App. at 121).
In sum, “Congress did not intend the TAA[/ATAA] petition process to be adversarial. Nor
did Congress intend to cast the Labor Department as a ‘defender of the fund,’ passively sitting in
judgment, ruling ‘thumbs up’ or ‘thumbs down’ on whatever evidence petitioning workers might
manage to present.” BMC, 30 CIT at 1372, 454 F. Supp. 2d at 1357. Instead, Congress envisioned
that – much like the role of the Veterans Administration in veterans’ benefit cases – the Labor
Department would take a very active role in developing petitioning workers’ TAA/ATAA claims,
so as to “render a decision which grants every benefit that can be supported in law while protecting
the interests of the Government.” See BMC, 30 CIT at 1372 n.89, 454 F. Supp. 2d at 1357 n.89
(quoting VA regulation, 38 C.F.R. § 3.103(a)) (emphasis altered). Thus, in investigating
TAA/ATAA claims, the Labor Department cannot limit its review solely to the petitioning workers’
express claims. Instead, the agency must independently investigate the facts of each case, and –
based on that investigation – consider all legal theories under which the petitioning workers might
be eligible for certification. In a case such as this, where there is a relevant prior TAA/ATAA
certification, the Labor Department must consider the possibility of amending the prior certification
to extend coverage to the new group of petitioning workers. The Labor Department failed to do so
here.
Although the statute and regulations do not explicitly address the amendment of TAA/ATAA
certifications, the Labor Department extends certifications beyond two years when necessary “to
cover all adversely affected workers at the subject firm or appropriate subdivision,” in cases where
“the later worker separations [were] attributable to the basis for [the original] certification.” See
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United Steel, Paper and Forestry, Rubber, Mfg., Energy, Allied Indus. and Service Workers v. U.S.
Sec’y of Labor, 33 CIT at ____, 2009 WL 1175654 at *4 (2009); Weirton Steel Corporation,
Weirton, WV: Negative Determination on Remand, 73 Fed. Reg. 52,066, 52,068-70 (Sept. 8,
2008)5; see also 29 C.F.R. § 90.17(f) (“Upon reaching a determination that the certification of
eligibility should be continued, the certifying officer shall promptly publish in the Federal Register
a summary of the determination with the reasons therefor.”).
As outlined in section II above, there is ample record evidence in the case at bar indicating
that the terminations of the Workers here were “attributable to the basis for [the original, i.e., the
5
In its Negative Determination on Remand in the Weirton Steel case, the Labor Department
explained:
[I]n implementing its authority to certify all adversely affected workers, the
Department has [amended] and continues to amend the expiration date of
certifications when the facts of the case show that the later worker separations are
attributable to the basis for [the original] certification (the increased imports or shift
of production to a foreign country).
73 Fed. Reg. at 52,068. The agency further stated:
Requests for an amendment to extend the period of a certification are rare. However,
in response to each request for such an amendment to a certification, the Department
reviews the facts of the case and determines whether or not it has been demonstrated
that the worker separations that occurred after the expiration date of the certification
has expired are also “attributable” to the basis for that certification.
73 Fed. Reg. at 52,069; see id. at 52,068 (noting that “requests to amend certification to extend the
expiration period are granted in cases where . . . the worker separations are ‘attributable’ to the basis
for the earlier certification”). See also, e.g., Thomson, Inc., Circleville, OH: Notice of Termination
of Investigation, 72 Fed. Reg. 5751 (Feb. 7, 2007); O/Z Gedney, Terryville, CT: Amended
Certification Regarding Eligibility to Apply for Worker Adjustment Assistance, 69 Fed. Reg. 43,454
(July 20, 2004); Wiegand Appliance Division, Emerson Electric Company, Vernon, AL: Amended
Certification Regarding Eligibility to Apply for Worker Adjustment Assistance, 68 Fed. Reg. 50,198
(Aug. 20, 2003).
Court No. 07-00160 Page 13
2004] certification” – that is, the 2004 shift of apparel fiber production to Monterrey, Mexico. See
73 Fed. Reg. at 52,068. In contrast, there is relatively little record support for the Labor
Department’s conclusion that the layoffs at issue “[were] not related to the shift in production of
apparel nylon filament to Mexico in 2004,” but, rather, were the result of “a business decision to
improve the efficiency of . . . [Invista’s] customer service organization” – and the evidence that
exists is relatively weak. See 73 Fed. Reg. at 32,739-40.
The Labor Department’s principal evidence in support of its determination is the negative
response of an Invista representative to a single, pointed inquiry by the agency:
[P]lease answer the following question with “Yes” or “No” and a detailed
explanation: Was the business decision to reorganize the Customer Service
Organization the result of the shift of production two years earlier?
See C.S.A.R. 17. There are, however, several problems with the Labor Department’s reliance on
such evidence.
First, the Labor Department, in effect, asked the Invista representative the “ultimate
question.” In essence, the agency delegated to the Invista representative the power to decide the
Workers’ TAA/ATAA petition. But “it is Labor’s responsibility, not the responsibility of [a]
company official, to determine whether a former employee is eligible for benefits.” BMC, 30 CIT
at 1340, 454 F. Supp. 2d at 1328 (quotation omitted). The Labor Department erred by substituting
a company representative’s conclusory opinion for its own probing inquiry into all the relevant
underlying facts concerning the relationship between the 2004 shift in production to Mexico and the
Workers’ subsequent terminations. See generally BMC, 30 CIT at 1339-41, 454 F. Supp. 2d at
1328-29 (cataloguing wide range of opinions criticizing agency for posing “ultimate question” to
employers, and for abdicating agency’s responsibility to conduct its own independent factual
Court No. 07-00160 Page 14
investigations and to reach its own independent legal conclusions).6
Moreover, there is a false dichotomy embodied in the Labor Department’s conclusion that
the Workers’ terminations “[were] not related to the shift in production of apparel nylon filament
to Mexico in 2004,” but were instead the result of “a business decision to improve the efficiency of
. . . [Invista’s] customer service organization.” See 73 Fed. Reg. at 32,739-40. As a matter of pure
logic, the fact that a company states that layoffs are part of a plan to “increase efficiency,”
“restructure,” or “save money” says nothing about whether or not those layoffs are attributable to
effects of international trade. As a general principle, companies are obviously always striving to
operate in an efficient and cost-effective manner. No doubt the 2004 shift in production was the
result of a “business decision” designed to “increase efficiency,” “restructure,” and “save money”
in the manufacture of apparel fiber. But the driving force behind that “business decision” was
unquestionably foreign competition.
The Labor Department cannot premise its determinations in TAA/ATAA cases on
conclusory assertions about companies’ “business decisions” or on euphemisms such as “enhanced
6
Other flaws in the Labor Department’s investigation include the agency’s failure to explain
why it credited some sources of information and rejected other information. Further, the Labor
Department failed to confront sources with conflicting information provided by others, depriving
them of the opportunity to clarify discrepancies, and diminishing the usefulness of the information
elicited by the agency.
But perhaps most troubling is the Labor Department’s failure to contact the Workers, to
apprise them of the proof required to establish their entitlement to TAA/ATAA certification, and
to elicit information in support of their case. On remand, the Labor Department’s sole contact with
the Workers was an April 8, 2008 letter to their counsel requesting certain specific information about
the Workers’ duties at Invista, and the responsibilities which were transferred abroad. See S.A.R.
1. Given the Labor Department’s failure to reach out to the Workers on remand, the Government’s
objection to the Workers’ submission of a declaration in support of their motion rings very hollow
indeed. See Def.’s Brief at 12-13.
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competitiveness” and “increased efficiency.” For purposes of a TAA/ATAA analysis, the relevant
question as to any asserted “business decision” is: Why? In this case, why did Invista feel the need
to “improve the efficiency” of its customer service organization, and how (if at all) was it related
to the 2004 shift in production to Mexico (or otherwise related to the pressures of foreign
competition)? See, e.g., BMC, 30 CIT at 1338 n.32, 454 F. Supp. 2d at 1326-27 n.32 (criticizing
Labor Department for accepting similar statements by employers); Former Employees of Int’l
Business Machines v. U.S. Sec’y of Labor, 31 ____, ____ n.72, 483 F. Supp. 2d 1284, 1335 n.72
(2007) (same).
In its Negative Determination on Remand, the Labor Department cited three other findings
in an effort to bolster its conclusion that the Workers’ terminations were not related to the shift in
production of apparel fiber to Mexico in 2004. See 73 Fed. Reg. at 32,739-40. But those findings
too are questionable.
The Labor Department asserts, for example, that “two of the four separated workers worked
on a product line (Performance Materials) whose production was not shifted to Mexico.” 73 Fed.
Reg. at 32,739. But the evidence on that point, in fact, is in conflict and unclear (and, in any event,
obviously says nothing about the terminations of the two other workers). The Labor Department
similarly emphasizes that more than two years elapsed between the shift of manufacturing operations
to Mexico and the terminations of these Workers. See 73 Fed. Reg. at 32,739-40. But that is the
very point of the Labor Department’s procedure for amending TAA/ATAA certifications to extend
the expiration period: The Labor Department has implicitly recognized that, in certain cases, the
employment of some trade-impacted workers may extend for a time beyond the presumptive two-
year period reflected in the agency’s standard TAA/ATAA certification. In the instant case, the
Court No. 07-00160 Page 16
Workers were notified of their impending terminations less than three months after the 2004
TAA/ATAA certification expired. As its third and final piece of corroborating evidence, the Labor
Department notes that the Customer Service Representatives were replaced not by workers in
Mexico, but instead by workers in Brazil and elsewhere. See 73 Fed. Reg. at 32,739-40. Again, the
Labor Department misses the point. The gravamen of the Workers’ case is that, if production had
not been shifted to Mexico in 2004 (but rather had continued at the Chattanooga plant), the Workers
would still have their jobs supporting that domestic production. Nothing in law or logic requires that
the Workers’ jobs necessarily have shifted to Mexico. Under the Labor Department’s own
standards, if there is a “causal nexus” between the 2004 shift in production and the Workers’
terminations, they are entitled to certification. See 73 Fed. Reg. at 52,068.
IV. Conclusion
For all the reasons set forth above, this matter must be remanded to the Labor Department
for a second time. On remand, the Labor Department shall thoroughly and independently investigate
the facts of the case, and – based on that investigation – shall consider all legal theories under which
the petitioning Workers might be eligible for certification, including the possible amendment of the
2004 TAA/ATAA certification.
A separate order will enter accordingly.
/s/ Delissa A. Ridgway
___________________________
Delissa A. Ridgway
Judge
Dated: June 18, 2009
New York, New York