Slip Op. 07 - 38
UNITED STATES COURT OF INTERNATIONAL TRADE
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FORMER EMPLOYEES OF FAIRCHILD SEMI- :
CONDUCTOR CORP.,
:
Plaintiffs,
:
v. Court No. 06-00215
:
UNITED STATES SECRETARY OF LABOR,
:
Defendant.
:
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Memorandum & Order
[Remand to defendant for reconsideration
of negative determination(s) regarding
eligibility for trade-adjustment assistance.]
Decided: March 13, 2007
Robert R. Petruska, pro se.
Peter D. Keisler, Assistant Attorney General; Jeanne E.
Davidson, Director, Patricia M. McCarthy, Assistant Director,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Jeffrey S. Pease); and Office of the Solicitor, U.S.
Department of Labor (Vincent Costantino), of counsel, for the
defendant.
AQUILINO, Senior Judge: In necessarily denying
plaintiffs' motion for leave to proceed in forma pauperis herein
per slip opinion 06-173, 30 CIT ___ (Nov. 21, 2006), the court
Court No. 06-00215 Page 2
nevertheless confirmed its commitment to timely review their
instant appeal from the Negative Determinations Regarding
Eligibility To Apply for Worker Adjustment Assistance And
Alternative Trade Adjustment Assistance of the Employment and
Training Administration ("ETA"), U.S. Department of Labor, TA-W-
58,624 (Feb. 28, 2006).1 It has now done so.
I
Jurisdiction is based upon 28 U.S.C. §§ 1581(d)(1) and
2631(d)(1), which refer to
any final determination of the Secretary of Labor under
section 223 of the Trade Act of 1974 with respect to the
eligibility of workers for adjustment assistance under
such Act[.]
That section 223, 19 U.S.C. §2273, requires the Secretary to
determine whether a petitioning group of workers meets the
requirements of preceding section 2272 and to issue a certification
of eligibility to apply for trade-adjustment assistance under that
act. That certification ensues, in general, if it is determined
that
(1) a significant number or proportion of the
workers in such workers' firm, or an appropriate
1
That slip opinion offered the plaintiffs the opportunity to
present or re-present their arguments in support of their requested
relief on the merits.
Court No. 06-00215 Page 3
subdivision of the firm, have become totally or
partially separated, or are threatened to become
totally or partially separated; and
(2)(A)(i) the sales or production, or both, of
such firm or subdivision have decreased abso-
lutely;
(ii) imports of articles like or directly
competitive with articles produced by such firm
or subdivision have increased; and
(iii) the increase in imports described in
clause (ii) contributed importantly to such
workers' separation or threat of separation and
to the decline in the sales or production of
such firm or subdivision; or
(B)(i) there has been a shift in production by
such workers' firm or subdivision to a foreign
country of articles like or directly competitive
with articles which are produced by such firm or
subdivision; and
(ii)(I) the country to which the workers'
firm has shifted production of the articles is a
party to a free trade agreement with the United
States;
(II) the country to which the workers'
firm has shifted production of the articles is
a beneficiary country under the Andean Trade
Preference Act, African Growth and Opportunity
Act, or the Caribbean Basin Economic Recovery
Act; or
(III) there has been or is likely to be
an increase in imports of articles that are like
or directly competitive with articles which are
or were produced by such firm or subdivision.
19 U.S.C. §2272(a).
Court No. 06-00215 Page 4
A
The administrative record ("AR") filed herein contains an
ETA Certification Regarding Eligibility To Apply for Worker
Adjustment Assistance and Alternative Trade Adjustment Assistance,
TA-W-53,335 (Dec. 2, 2003), to wit:
All workers of Fairchild Semiconductor Corporation,
Mountaintop, Pennsylvania, who became totally or
partially separated from employment on or after December
1, 2003 through two years from the date of certification
are eligible to apply for adjustment assistance under
Section 223 of the Trade Act of 1974, and are also
eligible to apply for alternative trade adjustment
assistance under Section 246 of the Trade Act of 1974.
AR, p. 38. On its face, the Certification was restricted to a
period that ended on December 1, 2005. Among other things, it
pointed out that Fairchild workers produced discrete semiconductor
devices; that ETA's investigation revealed that company sales and
employment decreased absolutely during January to September 2003
when compared to the same period in 2002; that the preponderance in
declines in Fairchild employment were related to a shift in
production of discrete semiconductor devices to Korea and China;
and that the agency had determined that company imports of those
devices were likely to increase. See id. at 36-37.
Court No. 06-00215 Page 5
That Certification also noted that Fairchild workers had
been previously certified as eligible to apply for trade-adjustment
assistance per petition number TA-W-40,054, which expired November
30, 2003. See id. at 37.
B
Whereafter, on or about January 11, 2006, the petition on
ETA Form 9042A (Rev. 11/05) for similar relief (and which underlies
the matter now at bar) was lodged with the agency, numbered TA-W-
58,624. See id. at 3-5. It was posited on behalf of seven
Fairchild workers who have been or will be laid off, with the
articles produced at the firm again stated to be "Discrete
Semic[on]ductor Devices". Id. at 3.
Unlike the results of the ETA investigations engendered
by the preceding two petitions on behalf of Fairchild workers,
number TA-W-58,624 led to the Negative Determinations at issue
herein. With regard to certification under 19 U.S.C. §2272(a),
supra, the agency concluded that the criteria of subsections
(2)(A)(ii) & (iii) and (2)(B)(ii) thereof had not been met viz.:
. . . The workers at the subject firm produce
semiconductor wafers. . . . The investigation revealed
that all semiconductor wafers manufactured at the
Mountain Top, Pennsylvania plant are exported for further
processing into discrete semiconductor devices
manufactured overseas.
Court No. 06-00215 Page 6
The investigation further revealed that the subject
firm did not import semiconductor wafers during the
period under investigation.
The investigation also revealed that plant
production of semiconductors [sic] wafers is being
consolidated into another Fairchild facility located in
China. It has been determined that no articles like or
directly competitive with semiconductor wafers produced
by the subject plant will be imported back to the United
States.
Id. at 42-43. Whereupon the ETA pointed out that workers denied
eligibility to apply for trade-adjustment assistance under section
223 of the Trade Act of 1974 cannot be certified eligible for
alternative-trade-adjustment assistance pursuant to section 246 of
that act, 19 U.S.C. §2318.
The petitioners were duly advised that they could request
administrative reconsideration by ETA within 30 days after
publication of the Negative Determinations in the Federal Register.
And they did so request, alleging that the agency statement quoted
above that "all semiconductor wafers manufactured at the Mountain
Top . . . plant are exported for further processing into discrete
semiconductor devices manufactured overseas" is "incorrect"2:
The . . . Pennsylvania plant manufactures
semiconductor wafer chips. After the product leaves our
2
AR, p. 57.
Court No. 06-00215 Page 7
facility, it is sent overseas to either be immediately
sold as a bare die device or placed into a package. Even
when the chip is placed in a package, the essence of the
device is never changed or altered from when it left our
facility; it is simply cut and placed into a package
before it returns to the U.S. for sale. In all
instances, the device is completely functional with or
without the package. Also, in each case, the device when
imported back to the U.S. is both like and directly
competitive to the semiconductor wafer chips produced by
the Mountain Top . . . facility.
Furthermore, if the comment[] . . . were accurate
(". . . all semiconductor wafers . . . are exported for
further processing into discrete semiconductor devices
manufactured overseas[]"), then no U.S. semiconductor
wafer facility could ever be approved for TAA benefits
because no U.S. semiconductor wafer facility imports
discrete wafers, they import the chips. However, past
TAA applications have been approved for wafer fabrication
facilities.[3]
* * *
Lastly, when the layoff occurred in January of 2006,
the duties, services and products designed by our staff
were moved to an overseas location, thus contributing
directly and importantly to those employees[']
separation.
AR, pp. 57-58.
This request for reconsideration was dismissed by ETA on
the ground that it
did not contain new information supporting a conclusion
that the determination was erroneous, and also did not
provide a justification for reconsideration of the
determination that was based on either mistaken facts or
a misinterpretation of facts or of the law.
Id. at 63.
3
Id., citing and discussing ETA determinations in matters
numbered TA-W-56,077 and [id. at 58] TA-W-52,099.
Court No. 06-00215 Page 8
Underlying this dismissal was agency reasoning that:
The current investigation established that the subject
firm exported all semiconductor wafers manufactured at
the subject firm during the relevant time period and
there was no shift in production of semiconductor wafers
abroad.
Furthermore, the review of the initial investigation
revealed that an insignificant amount of layoffs were
administered or scheduled at the subject facility during
the relevant time period. Since the expiration of the
previous certification of the subject firm on December 2,
2005, the subject firm laid off less than five percent of
its employees and because employment levels at the
subject facility did not decline significantly in the
relevant period, criterion (1) has also not been met.
Ibid. at 61.
C
That statutory criterion, 19 U.S.C. §2272(a)(1), supra,
must be met, of course, before there need be any analysis of the
further factors for certification set forth in subsection (2).
According to 29 C.F.R. §90.2:
Significant number or proportion of the workers
means that:
(a) In most cases the total or partial separations,
or both, in a firm or appropriate subdivision thereof,
are the equivalent to a total unemployment of five
percent (5 percent) of the workers or 50 workers,
whichever is less; or
(b) At least three workers in a firm (or appropriate
subdivision thereof) with a work force of fewer than 50
workers would ordinarily have to be affected.
Court No. 06-00215 Page 9
The implication of plaintiffs' current pleading is that
they comprised 100 percent of the remaining subdivision of workers
covered by defendant's previous certification[s] that expired on
December 1, 2005. To quote pro se plaintiff Petruska's "fact 8",
for example:
Appeal group, terminated 1/21/2006, and participated in
the overseas production transfer that affected the
terminated personnel in the approved TAA Decision #53335.
We were detained until the production transfer was
completed at the end of 2005.
If this, in fact, is this case, then the court is
constrained to remand the matter to the defendant for
reconsideration of the merits of its denial of the very same trade-
adjustment relief afforded plaintiffs' similarly-situated
predecessors at work at Mountain Top. That reconsideration must
attempt to reconcile the statement in the Negative Determinations
that the underlying investigation
revealed that plant production of semiconductor[] wafers
is being consolidated into another Fairchild facility
located in China4
with the subsequent agency afterthought that "there was no shift of
production of semiconductor wafers abroad." That reconsideration
must also attempt to "cogently explain"5 how the data adduced on
4
AR, p. 43.
5
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 48 (1983).
Court No. 06-00215 Page 10
the record do not, in fact, tend to satisfy 19 U.S.C. §2272-
(a)(2)(A)(ii) & (iii) and (2)(B)(ii) for certification of
eligibility.
II
The defendant may have until April 27, 2007 for such
reconsideration and to report the results thereof to the plaintiffs
and the court.
So ordered.
Decided: New York, New York
March 13, 2007
/s/ Thomas J. Aquilino, Jr.
Senior Judge