Slip Op. 06-171
UNITED STATES COURT OF INTERNATIONAL TRADE
INDEPENDENT STEELWORKERS :
UNION, :
:
Plaintiff, : Before: Richard K. Eaton,
: Judge
v. :
: Court No. 04-00492
UNITED STATES SECRETARY :
OF LABOR, :
:
Defendant. :
:
OPINION AND ORDER
[Plaintiff’s motion for judgment upon the agency record denied in
part. Defendant’s motion to dismiss denied. Case remanded to
United States Department of Labor to assemble and submit
administrative record.]
Dated: November 17, 2006
Stewart and Stewart (Terence P. Stewart, J. Daniel Stirk,
and Sarah V. Stewart), for plaintiff.
Peter D. Keisler, Assistant Attorney General, Civil
Division, United States Department of Justice; David M. Cohen,
Director, Civil Division, Commercial Litigation Branch, United
States Department of Justice; Patricia M. McCarthy, Assistant
Director, International Trade Section, Civil Division, Commercial
Litigation Branch, United States Department of Justice (Claudia
Burke), for defendant.
Eaton, Judge: This matter is before the court on plaintiff
Independent Steelworkers Union’s (“plaintiff” or “ISU”) motion
for judgment upon the agency record pursuant to USCIT Rule 56.1,
and defendant United States’ (“defendant” or “United States”)
motion on behalf of the United States Department of Labor
Court No. 04-00492 Page 2
(“Labor” or the “Department”) to dismiss Count IV of plaintiff’s
complaint for lack of subject matter jurisdiction pursuant to
USCIT Rule 12(b)(1).
By its motion, plaintiff contests two actions taken by the
Department. First, ISU disputes the Department’s denial, after
reconsideration, of the petition filed by employees of Weirton
Steel Corporation (“Weirton”) for certification as eligible for
Trade Adjustment Assistance (“TAA”) benefits beginning on April
24, 2004. See Weirton Steel Corporation, Weirton, West Virginia;
Notice of Negative Determination Regarding Application for
Reconsideration, AR at 195 (July 23, 2004) (“Reconsideration
Denial”) (citations to “AR” refer to the Administrative Record);
Weirton Steel Corporation, Weirton, West Virginia; Notice of
Negative Determination Regarding Application for Reconsideration,
69 Fed. Reg. 47,184 (Dep’t Labor Aug. 4, 2004). Second,
plaintiff takes issue with the Department’s denial of its request
to extend Weirton’s previously existing certification, which
expired on April 23, 2004. See Certification Regarding
Eligibility to Apply for Worker Adjustment Assistance, 67 Fed.
Reg. 22,112 (Dep’t Labor May 2, 2002) (“2002 Certification”);
Letter from the U.S. Dep’t of Labor to Mr. Terence P. Stewart
(Sept. 24, 2004) (“Labor Letter”).
By its motion, the United States argues that the
Reconsideration Denial was fully justified by the law and facts
Court No. 04-00492 Page 3
and that the court lacks jurisdiction to hear Count IV of the
complaint challenging Labor’s denial of plaintiff’s request to
extend the already existing TAA certification. For the following
reasons, the court sustains the Reconsideration Denial, denies
defendant’s motion to dismiss Count IV of plaintiff’s complaint
and reserves judgment on plaintiff’s challenge to the
Department’s denial of its request to extend the duration of the
2002 Certification until such time as Labor assembles and submits
the administrative record for the requested extension.
BACKGROUND
On July 16, 2001, Labor initiated a TAA certification
investigation in response to a petition filed on behalf of
workers at Weirton engaged in the production of hot and cold
rolled coated carbon steel. See Pl.’s Mem. Supp. R. 56.1 Mot. J.
Agency R. (“Pl.’s Mem.”) at 4–5. The Department’s investigation
led it to conclude that increased imports of articles competitive
with those produced by Weirton “contributed importantly to the
decline in sales or production and to the total or partial
separation of workers of Weirton Steel.” Id. at 5. As a result,
on April 23, 2002, the Department certified as eligible for TAA
benefits all workers at Weirton who became totally or partially
separated from employment on or after July 3, 2000. See 2002
Certification, 67 Fed. Reg. at 22,112. The 2002 Certification
Court No. 04-00492 Page 4
would remain in effect for two years from the date of
certification, and thus expire on April 23, 2004. See 19 U.S.C.
§ 2291 (2000).1
In May 2003, approximately one year prior to the expiration
date of the 2002 Certification, Weirton filed for Chapter 11
bankruptcy. See Pl.’s Mem. at 7; see also Weirton Steel
Voluntary Pet. Chapter 11 Bankr., AR at 188. After the filing,
but prior to the expiration of the 2002 Certification, Weirton
officials agreed to sell the company’s assets (but not the
company itself) to International Steel Group (“ISG”). See Pl.’s
Mem. at 8.2
1
This provision provides, in pertinent part:
Payment of a trade readjustment allowance
shall be made to an adversely affected worker
covered by a certification under subpart A of
this part . . . if the following conditions
are met:
(1) Such worker’s total or partial
separation before his application
under this part occurred —— . . .
(B) before the expiration
of the 2-year period
beginning on the date
on which the
determination under
section 2273 of this
title was made . . . .
19 U.S.C. § 2291(a)(1)(B).
2
On April 22, 2004, just one day before the 2002
Certification was set to expire, the United States Bankruptcy
Court for the Northern District of West Virginia approved the
(continued...)
Court No. 04-00492 Page 5
As a result of the sale, Weirton retained some of its
workers to maintain the plant and ensure a smooth transition of
the facilities to the new owners. See Pl.’s Mem. at 8.
Following execution of the sales agreement, both Weirton and ISU
contacted the Department and asked that the 2002 Certification be
extended beyond its April 23, 2004 termination date so that the
retained workers would be eligible to apply for TAA benefits upon
being released.3 See id. This request, which was made prior to
the expiration of the 2002 Certification, was denied by the
Department “as a matter of policy . . . .”4 Id. (“The ISU
2
(...continued)
sale of Weirton’s assets to ISG, thus making it clear that the
retained workers would not become separated from Weirton until
after the 2002 Certification expired. See Order of Bankr. N.D.
W.Va. of 4/22/04.
3
Neither the date of the initial request for extension
of the 2002 Certification nor the denial of that request can be
determined from the record or the parties’ submitted briefs. As
far as the court can determine, the date for both the request and
denial was early 2004, sometime prior to March 9, 2004, the date
on which the company filed its 2004 petition for certification.
4
It does not appear to the court that the Department has
a policy to deny out-of-hand a petitioning group’s request to
extend the duration of an existing certification. While ISU
referenced two examples where the Department found reason to
extend the duration of a previously existing certification, it is
apparent that granting these extension requests is an often-
engaged-in practice. See, e.g., O/Z Gedney Co., Div. of EGS
Electrical Group, Terryville, CT; Amended Certification Regarding
Eligibility To Apply for Worker Adjustment Assistance, 69 Fed.
Reg. 43,454 (Dep’t Labor July 20, 2004) (extending certification
expiration by one year so as to include a worker retained to be
engaged in activities related to the close-down process of a
production firm); Wiegand Appliance Division, Emerson Electric
Company, Vernon, AL; Amended Certification Regarding Eligibility
(continued...)
Court No. 04-00492 Page 6
contacted the Department seeking to extend the expiration of the
[2002 Certification], but was told by Labor that as a matter of
policy, such extensions are not granted.”). As an alternative,
the Department suggested that Weirton’s workers file a new TAA
petition. See id.
On March 9, 2004, Weirton followed Labor’s advice and filed
a new petition with the Department in the hope of obtaining
certification for the 300 retained workers.5 See Pet. Trade
4
(...continued)
To Apply for Worker Adjustment Assistance, 68 Fed. Reg. 50,198
(Dep’t Labor Aug. 20, 2003) (extending certification expiration
by five days so as to include workers completing tracking of
previous orders to customers).
5
A petition “shall be filed by a group of workers for a
certification of eligibility to apply for adjustment assistance
or by their certified or recognized union or other duly
authorized representative.” 29 C.F.R. § 90.11(a) (2004). The
petition shall include:
(1) the name(s), address(es), and telephone
number(s) of the petitioner(s);
(2) the name or a description of the group of
workers on whose behalf the petition is
filed . . .;
(3) the name and address of the workers’ firm or
appropriate subdivision thereof;
(4) the name, address, telephone number, and title
of an official of the firm;
(5) the approximate date(s) on which the total or
partial separation of a significant number or
proportion of the workers in the workers’ firm or
subdivision began and continued, or threatened to
begin, and the approximate number of workers
(continued...)
Court No. 04-00492 Page 7
Adjustment Assistance, AR at 2 (“2004 Petition”). In its
petition, Weirton stated that it continued to suffer the effects
of increased steel imports made from late 1997 through mid-2003.
See id. Ex. B, AR at 6.
Upon receipt of plaintiff’s petition, the Department
conducted an investigation, but unlike in 2002, the Department
issued a negative determination. See Negative Determination
Regarding Eligibility To Apply for Worker Adjustment Assistance
And Alternative Trade Adjustment Assistance, AR at 101–02 (“2004
Determination”); Notice of Determinations Regarding Eligibility
To Apply for Worker Adjustment Assistance, 69 Fed. Reg. 31,134,
5
(...continued)
affected by such actual or threatened total or
partial separations;
(6) a statement of reasons for believing that
increases of like or directly competitive imports
contributed importantly to total or partial
separations and to the decline in the sales or
production (or both) of the firm or subdivision;
(7) a description of the articles produced by the
workers’ firm or appropriate subdivision, the
production or sales of which are adversely
affected by increased imports, and a description
of the imported articles concerned.
If available, the petition should also
include information concerning the method of
manufacture, end uses, and wholesale or
retail value of the domestic articles
produced and the United States tariff
provision under which the imported articles
are classified.
29 C.F.R. § 90.11(c)(1)-(7).
Court No. 04-00492 Page 8
31,135 (Dep’t Labor June 2, 2004). Labor based the denial on its
conclusion that the Weirton workers failed to meet the statutory
requirements for certification, specifically 19 U.S.C.
§ 2272(a)(2)(A)(iii) and § 2272(a)(2)(B)(i). See Def.’s Resp.
Pl.’s R. 56.1 Mot. J. Agency R. and Def.’s Mot. Dismiss (“Def.’s
Resp.”) at 9–10. That is, the Department found that increased
steel imports did not contribute importantly to the worker
separations during the 2002–2003 investigatory period, and that
steel imports had not led Weirton to shift its production to a
foreign country. See id. at 10.6 Based on its investigation,
the Department concluded that Weirton’s sales had actually
increased from 2003 to 2004. See 2004 Determination, AR at 102.
In addition, Labor found that, based on a survey of Weirton’s
major customers regarding their purchases of the products at
issue, “[m]ost respondents either did not import or reported
declining imports.” 2004 Determination, AR at 102.
On June 18, 2004, ISU timely filed its written request that
the Department reconsider its denial of Weirton’s 2004 Petition.
6
The Department, in accordance with its regulations,
used the import data from the immediately preceding year to
determine worker eligibility for certification in 2004. In
determining whether increased subject imports contributed
importantly to the separation of the petitioning group, the
regulations direct the Department to compare import data in what
is referred to as the “representative base period.” 29 C.F.R.
§ 90.2. “The representative base period shall be one year
consisting of the four quarters immediately preceding the date
which is twelve months prior to the date of the petition.” Id.
Court No. 04-00492 Page 9
See Request for Reconsideration of TA-W-54,455: Former Employees
of Weirton Steel Corporation (June 18, 2004), AR at 119
(“Reconsideration Request”); 29 C.F.R. § 90.18(a).7 In its
request, ISU claimed that the Department unreasonably failed to
examine any evidence that related to events that occurred outside
of the one-year representative base period. See Reconsideration
Request, AR at 122. For ISU, had the Department considered this
evidence when reaching its final determination, it would have
been compelled to conclude that increased imports led to
Weirton’s decline, eventual bankruptcy and worker separation.
See id. Put another way, ISU argued that considering the
evidence outside of the representative period would result in an
affirmative determination and, thus, certification of the workers
as eligible to apply for TAA benefits. ISU urged the Department,
as a matter of policy, to extend the period of investigation
because doing so would be “[i]n keeping with the remedial purpose
7
The regulation provides, in pertinent part:
(a) Determinations subject to
reconsideration; time for filing. Any
worker, group of workers, . . . or authorized
representative of such worker or group,
aggrieved by a determination issued pursuant
to the Act . . . may file an application for
reconsideration of the determination . . . .
All applications must be in writing and must
be filed no later than thirty (30) days after
the notice of the determination has been
published in the Federal Register.
29 C.F.R. § 90.18(a).
Court No. 04-00492 Page 10
of the statute, and the ability of the Department to deviate from
its regulations and prior practice where good cause
exists . . . .” Reconsideration Request, AR at 129.
On July 23, 2004, the Department published its determination
denying plaintiff’s Reconsideration Request, stating that it
“must conform to the Trade Act and associated regulations,” which
limit its review to evidence from the “relevant period of the
current investigation.” Reconsideration Denial, AR at 197.
Based on the evidence from the representative base period, Labor
found that: (1) sales at Weirton increased from 2002 to 2003; and
(2) imports did not contribute importantly to the layoffs of
Weirton’s workers. See id., AR at 196.
On September 14, 2004, having failed in its attempt to
persuade the Department to reconsider the denial of Weirton’s
2004 Petition, ISU again asked Labor to amend the 2002
Certification to extend its coverage to May 18, 2004, three-and-
a-half weeks beyond the established expiration date. See Letter
from Mr. Terence P. Stewart to Mr. Timothy F. Sullivan, Director,
Division of Trade Adjustment Assistance (Sept. 14, 2004)
(“Stewart Letter”). As of May 18, 2004, ISG was the new owner of
the plant. See id. at 2. As a result, ISU argued that Weirton
could no longer be considered a producer of steel and, thus, all
of its production employees were permanently separated from that
date forward. See id. In support of its position, ISU cited two
Court No. 04-00492 Page 11
prior instances where Labor granted similar requests. See id. at
3. Nevertheless, on September 24, 2004, the Department denied
ISU’s request to extend the duration of the 2002 Certification
because: (1) Weirton was a steel producer; (2) the scenario
presented was dissimilar to those in which amendments had
previously been granted because, in this case, production at the
plant continued whereas in the other instances, workers were
retained in decommissioning the plant; and (3) as Labor indicated
in its earlier determinations relating to Weirton’s workers,
increased steel imports simply were not a cause of the workers’
separation from the company. See Labor Letter.
Plaintiff now challenges Labor’s denial of its
reconsideration and amendment requests. Jurisdiction over both
the denied petition for TAA eligibility and the denied request
for an amendment lies with 28 U.S.C. § 1581(d)(1) (2000) and 19
U.S.C. § 2395(c) or in the alternative, with respect to the
denied request for an amendment, 28 U.S.C. § 1581(i)(4) provides
a separate basis for jurisdiction.8
8
The court has exclusive jurisdiction over an action
commenced to review “any final determination of the Secretary of
Labor under [19 U.S.C. § 2273] with respect to the eligibility of
workers for adjustment assistance . . . .” 28 U.S.C.
§ 1581(d)(1). A negative determination on reconsideration “shall
constitute a final determination for purposes of judicial review
pursuant to . . . 19 U.S.C. § 2395 . . . .” 29 C.F.R. 90.18(i).
Specifically, the court “shall have jurisdiction to affirm the
action of the Secretary of Labor . . . or to set such action
aside, in whole or in part.” 19 U.S.C. § 2395(c). In addition,
(continued...)
Court No. 04-00492 Page 12
STANDARD OF REVIEW
The court reviews the Department’s determination not to
reconsider its denial of plaintiff’s 2004 Petition for
substantial evidence. Specifically, “[t]he findings of fact by
the Secretary of Labor . . . if supported by substantial
evidence, shall be conclusive; but the court, for good cause
shown, may remand the case . . . to take further evidence, and
[the] Secretary may thereupon make new or modified findings of
fact and may modify his previous action . . . .” 19 U.S.C.
§ 2395(b). “Substantial evidence is something more than a ‘mere
scintilla,’ and must be enough reasonably to support a
conclusion.” Ceramica Regiomontana, S.A. v. United States, 10
CIT 399, 405, 636 F. Supp. 961, 966 (1986), aff’d, 810 F.2d 1137
(Fed. Cir. 1987) (citations omitted). Good cause for remanding
the Department’s determination “exists if [its] chosen
methodology is so marred that [its] finding is arbitrary or of
such a nature that it could not be based on substantial
evidence.” Former Employees of Linden Apparel Corp. v. United
States, 13 CIT 467, 469, 715 F. Supp. 378, 381 (1989) (internal
8
(...continued)
the United States Court of Appeals for the Federal Circuit has
held that the court may exercise jurisdiction pursuant to 28
U.S.C. § 1581(i)(4), but stated that the provision “limits the
court’s review to Labor’s administration and enforcement of Trade
Act determinations under § 1581(d).” Former Employees of Quality
Fabricating, Inc. v. United States Sec’y of Labor, 448 F.3d 1351,
1355 (Fed. Cir. 2006).
Court No. 04-00492 Page 13
citations and quotation marks omitted). Finally, the court’s
review of the Department’s findings is confined to the
administrative record. See 28 U.S.C. § 2640(c) (“In any civil
action commenced in the Court of International Trade to review
any final determination of the Secretary of Labor under [19
U.S.C. § 2273] . . . the court shall review the matter as
specified in [19 U.S.C. § 2395].”).
DISCUSSION
I. Plaintiff’s Motion
A. Relevant Law
Under the statutory scheme for determining group eligibility
to apply for TAA benefits, petitioning workers must demonstrate
to the Department that:
(1) a significant number or proportion of the
workers in such workers’ firm, or an
appropriate 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
absolutely;
(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
Court No. 04-00492 Page 14
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)(1),(2)(A) & (B); see also 19 U.S.C.
§ 2273(a) (“As soon as possible after the date on which a
petition is filed under section 2271 of this title, . . . the
Secretary shall determine whether the petitioning group meets the
requirements of section 2272 . . . .”). For purposes of 19
U.S.C. § 2272(a)(2)(A)(iii), the petitioning workers need only
demonstrate that the increase in imports is an important cause of
the separation, “but not necessarily more important than any
other cause.” 19 U.S.C. § 2272(c)(1). Satisfaction of
§ 2272(a)(1) and (2)(A) or (2)(B) results in the issuance of a
certification of eligibility. The certification must specify the
Court No. 04-00492 Page 15
date of worker separation. See 19 U.S.C. § 2273(a).
Notably, Labor not only decides whether a group of workers
is eligible for TAA benefits, but may also determine when the
certification expires. See 19 U.S.C. § 2273(d) (permitting Labor
to terminate certification where “total or partial separations
from [the] firm or subdivision are no longer attributable to the
conditions specified in [19 U.S.C. § 2272] . . . .”); see also 29
C.F.R. § 90.16(d)(2) (“When applicable, the certification shall
specify the date(s) after which the total or partial separations
of the petitioning group of workers . . . specified in the
certification are no longer attributable to the conditions set
forth in paragraph (b) of this section.”); 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.”). That is, where the
Department does not specify a termination date at the time of
certification, the statute and regulations anticipate a further
investigation by which the Department may decide to terminate or
continue the certification based on the circumstances. See 19
U.S.C. § 2273(d); 29 C.F.R. § 90.17(f). Absent such
circumstances, the period in which workers are certified to apply
for TAA benefits is statutorily limited to two years. See
19 U.S.C. § 2291(a)(1)(B); see also Commc’ns Workers of Am., AFL-
Court No. 04-00492 Page 16
CIO v. United States Sec’y of Labor, 19 CIT 687, 690 (1995) (not
published in the Federal Supplement).
B. Plaintiff’s 2004 Petition for Certification
Plaintiff first claims that the Department not only
unreasonably denied Weirton’s 2004 Petition for certification,
but compounded that unreasonableness by issuing a negative
determination on plaintiff’s request for reconsideration of the
initial denial. Plaintiff raises two related arguments in
support of its contention that the Department should be required
to reconsider the negative determination and grant plaintiff’s
2004 Petition. First, it insists that the Department
unreasonably declined to consider evidence of events that took
place outside of the one-year representative base period. See
Pl.’s Mem. at 13. Second, plaintiff asserts that the remedial
purpose of the TAA statute required the Department to consider
such factors as the “surges of imports from 1998–2002 [that]
drove steel prices to unsustainable lows,” causing prices to
collapse, even though those events took place outside of the
representative base period.9 Id. at 14. Thus, ISU claims that
the effects from the same increased steel imports that the
9
According to ISU, the trade adjustment statutes are
remedial in nature and should be administered with high regard to
the interest of the workers. See Pl.’s Mem. at 13 (citing Former
Employees of Elec. Data Sys. Corp. v. United States Sec’y of
Labor, 28 CIT , 350 F. Supp. 2d 1282 (2004)).
Court No. 04-00492 Page 17
Department found contributed importantly to the separation of
Weirton’s employees in 2002, continued to affect adversely
workers beyond April 23, 2004.
In addition, plaintiff argues that while the number of units
sold by Weirton may have increased for some of its products, the
units actually produced by the company decreased for all but one
item during the examined time period.10 See Pl.’s Mem. at 9;
Reconsideration Request, AR at 128. Plaintiff asserts that these
factors coupled with previous determinations by Labor to extend
the one-year representative base period, demonstrate that Labor’s
denial of plaintiff’s 2004 Petition is unsupported by substantial
evidence and not in accordance with law.
Labor supports its determination by emphasizing that its
denial of Weirton’s 2004 Petition was the result of its adherence
to its regulations. That is, Labor found that the evidence from
the representative base period failed to demonstrate that
increased imports contributed importantly to the workers’
separation and, in turn, plaintiff failed to satisfy 19 U.S.C.
§ 2272(a)(2). See 2004 Determination, AR at 100–03.
Specifically, Labor maintains that during the one year prior to
the filing of the petition on March 9, 2004, there were
10
For instance, the record indicates that production
totals dropped from 15,521 to 14,902 (tons per year in thousands)
from 2002 to 2003. See Reconsideration Request, Table I, AR at
128.
Court No. 04-00492 Page 18
decreasing imports of “hot rolled carbon sheet, cold rolled
carbon sheet, hot dipped galvanized sheet and strip, galvanized
electrolytic carbon sheet and strip, and tin mill products (black
plate, tin plate, tin free) . . . .” 2004 Determination, AR at
102; see also AR at 71–75. Likewise, the Department concluded
that Weirton’s relevant sales increased over the same time
frame.11 See 2004 Determination, AR at 102.
In response to plaintiff’s claim that the Department abused
its discretion by not reviewing evidence outside of the
representative base period, Labor contends that it acted
reasonably by following the limitations imposed by the
regulation. The regulation provides that “[t]he representative
base period shall be one year consisting of the four quarters
immediately preceding the date which is twelve months prior to
the date of the petition.” 29 C.F.R. § 90.2. In Labor’s view,
limiting its review to the time period prescribed by its
regulations demonstrates that it acted in accordance with law.
See Def.’s Resp. at 15; Reconsideration Denial, AR at 197.
The Department’s adherence to the one-year representative
period has previously been found to be reasonable. See Former
Employees of Homestake Mining Co. v. Brock, 12 CIT 270, 272–73
11
Although not providing the primary basis for its
determination, Labor observed that a survey of Weirton’s major
customers indicated that those customers decreased their reliance
on imported steel during the examined time period. See
Reconsideration Denial, AR at 196.
Court No. 04-00492 Page 19
(1988) (not published in the Federal Supplement) (“[T]his Court
finds that the Secretary is permitted to confine the
investigation to the year of separation and the immediately
preceding year in determining under [19 U.S.C.
§ 2272(a)(2)(iii)] . . . whether the imports found to be
increasing ‘contributed importantly’ to the worker separations
and to any decline in sales or production.”); see also Paden v.
United States Dep’t of Labor, 562 F.2d 470, 473 (7th Cir. 1977)
(holding that by “confining consideration to imports during the
year of separation and the immediately preceding year, the
Secretary can focus on those imports which are most likely to
affect employment in the year of separation while diminishing
consideration of those factors which, while affecting employment,
are not within the coverage of the act.”).
It is well settled that “[w]hen a court reviews an agency’s
construction of the statute which it administers, . . . if the
statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency’s answer
is based on a permissible construction of the statute.” Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842–43 (1984). While possibly not permissible in all cases where
workers have suffered injury from imports, in this case the
regulation appears to be permissible. In the absence of specific
statutory language, Labor determined that the one-year
Court No. 04-00492 Page 20
representative base period would best promote accurate
determinations as to the effects of increased imports on worker
separation, and thereby advance the goal of ensuring that only
those workers truly injured by competitive imports would be
eligible to apply for TAA benefits. Under the facts of this
case, plaintiff has not made a compelling argument that this
interpretation of the TAA statute embodied in Labor’s regulations
is unreasonable. This is particularly the case where, as shall
be seen infra, there is an alternative way to address plaintiff’s
complaints. Thus, the court finds that Labor’s decision to base
its denial of plaintiff’s 2004 Petition and its denial of
plaintiff’s Reconsideration Request solely on evidence from the
representative base period was reasonable and in accordance with
law.
Having found reasonable Labor’s decision to rely solely on
evidence from the representative base period, the court now turns
to the Department’s substantive finding. Where petitioning
workers assert in a new petition that their present separation is
caused by the same factors that led to a prior certification, the
Department cannot rely upon its prior findings, but rather must
engage in an independent analysis before granting a new
certification. See Commc’ns Workers of America, 19 CIT at 691.
Here, the Department found in its 2004 Determination that
the requirements of § 2272(a)(2)(A) were not met. Labor
Court No. 04-00492 Page 21
concluded that the record demonstrated that: (1) Weirton’s sales
increased absolutely; (2) imports of several articles directly
competitive with those produced by Weirton did not increase; (3)
increased imports did not contribute importantly to the
separation of Weirton’s workers; (4) Weirton had not shifted
steel production to a foreign country; and (5) there would not
likely be an increase in steel imports that would affect
adversely Weirton’s workers. See 2004 Determination, AR at 102.
While the court agrees with plaintiff that Labor is required to
investigate whether “sales or production, or both” decreased and
may not simply rely on an increase in sales in its analysis, the
statute is clear in its mandate that petitioning workers must
satisfy all of the requirements of either
§ 2272(a)(2)(A) or (B) to be certified as eligible to apply for
TAA benefits. Plaintiff does not argue that for the period
reviewed, Labor unreasonably determined that its petition failed
to demonstrate that subject imports contributed importantly to
the workers’ separation. Thus, because the evidence supports
Labor’s conclusion that plaintiff did not satisfy the statutory
requirements for certification, the court sustains Labor’s
Reconsideration Denial.
C. Plaintiff’s Request to Amend 2002 Certification
ISU next challenges Labor’s denial of its September 14, 2004
Court No. 04-00492 Page 22
request to amend12 the 2002 Certification to extend the
expiration date by three-and-a-half weeks to cover those 300
workers retained to transfer the plant to ISG. Although Labor
has extended the time period for a certification’s coverage of
workers in other instances, the Department denied plaintiff’s
request in part because “the situations addressed by the [prior]
amendments . . . are not the same as the situation upon which
plaintiff based its request . . . .” Def.’s Mot. Leave Resp.
Pl.’s Supplemental Citations and Def.’s Resp. Supplemental
Citations (“Def.’s Resp. Supplemental Citations”) at 2.
Specifically, Labor stated that “the company was not closing, it
was being sold to a new owner who continued to operate the
business and there was undisputed evidence that the company’s
sales and production had increased since that last certification
was issued.” Id.
With respect to plaintiff’s appeal to this court, however,
Labor’s principal argument is that the court lacks subject matter
jurisdiction to hear plaintiff’s challenge to its denial of the
amendment request. Plaintiff asserts that the court has
12
The court refers to ISU’s request for an extension of
time as an “amendment,” although that term is not used in the
relevant statutes or regulations. Both Labor and this Court have
used this term in describing previous requests to extend the time
period for certification. See, e.g., Former Employees of
Motorola, Inc. v. United States Dep’t of Labor, 27 CIT __, __,
Slip Op. 03-166 at 3 (Dec. 17, 2003) (not published in the
Federal Supplement).
Court No. 04-00492 Page 23
jurisdiction under 19 U.S.C. § 2395(c) and 28 U.S.C. § 1581(d),
or in the alternative, under 28 U.S.C. § 1581(i)(4), the Court’s
residual jurisdiction provision.
In all cases, the court must, as a threshold matter,
determine whether it has subject matter jurisdiction. See Grupo
Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 593 (2004)
(“[B]y whatever route a case arrives in federal court, it is the
obligation of both . . . court and counsel to be alert to
jurisdictional requirements.”). The burden of establishing
jurisdiction lies with the party seeking to invoke the court’s
jurisdiction. See Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d
1573, 1583 (Fed. Cir. 1993). Neither party disputes that the
court may hear claims challenging a final determination of the
Department that relates to the certification of a group of
workers as eligible to apply for TAA benefits. See 28 U.S.C.
§ 1581(d)(1) (“The Court of International Trade shall have
exclusive jurisdiction of any civil action commenced to
review . . . any final determination of the Secretary . . . under
[19 U.S.C. § 2273] with respect to the eligibility of workers for
adjustment assistance . . . .”).
For plaintiff, “[t]he Department’s decision to deny [its]
request for an amendment of the [2002 Certification] was a final
determination of the Secretary of Labor under . . . 19 U.S.C.
§ 2273, with respect to the eligibility of workers for adjustment
Court No. 04-00492 Page 24
assistance.” Pl.’s Mem. at 22. As plaintiff observes,
The letter from the Department to Terence P.
Stewart, dated September 24, 2004, denying
ISU’s request for an extension of the 2002
[C]ertification’s expiration date constitutes
a final agency action and there is no other
adequate remedy in a court. In the letter,
the Department provided two reasons for
denying the ISU’s request. First, the
Department noted that the two trade petition
certifications referenced by the ISU in its
request were distinguishable from Weirton’s
situation because in those cases, workers
were retained to assist with the plant
closure after production had ceased. That is
not the case for workers at Weirton Steel.
Second, the Department noted that it
conducted a full and careful investigation in
[the 2004 Determination] and issued negative
determinations for the initial petition . . .
and the subsequent application for
reconsideration. Labor concluded that since
the Department determined that workers of the
firm were not adversely affected by increases
in imports we are unable to comply with your
request.
Id. at 23 (internal alterations, citations and quotation marks
omitted). In other words, plaintiff contends that for Labor to
have concluded that an amendment to the 2002 Certification was
not warranted, it (1) must have examined the evidence and
concluded that the retention of workers for the purpose of
shutting down a plant was somehow different from being retained
until the plant is turned over to a new company; or (2) must
necessarily have analyzed plaintiff’s request under the criteria
set forth in 19 U.S.C. § 2272.
Court No. 04-00492 Page 25
For its part, Labor first claims that jurisdiction is
lacking because on its face “[a] decision denying an extension of
time for the period covering a certification . . . is not a
determination that a petitioning group meets the requirements of
19 U.S.C. § 2272 and, therefore is not an appealable decision
within the jurisdiction of this Court . . . .” Def.’s Resp. at
17 (internal quotation marks omitted).13 In other words, the
Department understands the analysis involved in determining
whether to grant or deny a request for an extension of a
certification’s duration to be independent from that concerning a
petition for certification and hence not reviewable by the court.
Read together, 19 U.S.C. § 2395(c) and 28 U.S.C. § 1581(d)
grant the court jurisdiction over final determinations by the
Department concerning the petition of a group of workers for
certification as eligible to apply for TAA benefits. Thus,
jurisdiction over plaintiff’s claim challenging Labor’s denial of
its request to amend the 2002 Certification may be exercised if
13
The Department asserts that the instant dispute is
analogous to that presented to the United States Court of Appeals
for the Federal Circuit in Mitsubishi Elec. of Am., Inc. v.
United States, 44 F.3d 973, 976 (Fed. Cir. 1994). See Def.’s
Resp. at 16–17. There, the Federal Circuit held that this Court
lacked subject matter jurisdiction over any contest of a Customs
decision not relating to one of the specifically delineated
matters in 19 U.S.C. § 1514(a). The Department, therefore,
argues that because review of a Labor determination denying a
plaintiff’s request to amend an existing TAA certification is not
specifically listed in the statute as an action over which the
court has jurisdiction, ISU’s cause of action should be
dismissed.
Court No. 04-00492 Page 26
the denial is (1) a final determination; and (2) regards the
requirements for certification set forth in 19 U.S.C. § 2272.
The court finds that plaintiff established jurisdiction
under 19 U.S.C. § 2395(c) and 28 U.S.C. § 1581(d). First, the
court recognizes that “final determination” is not defined by
statute or regulation. However, the concept of finality as
applied to agency determinations is readily understood as
referring to an action where the “decision-making process has
reached a stage where judicial review will not disrupt the
orderly process of adjudication.” 5 Jacob A. Stein, Glenn A.
Mitchell & Basil J. Mezines, Administrative Law § 48.03[1] at 41
(2006); see also Bennett v. Spear, 520 U.S. 154, 177–78 (1997)
(“As a general matter, two conditions must be satisfied for
agency action to be final: First, the action must mark the
consummation of the agency’s decisionmaking process, . . . [a]nd
second, the action must be one by which rights or obligations
have been determined, or from which legal consequences will
flow.”) (internal citations and quotation marks omitted). Here,
Labor issued its denial on September 24, 2004 in the form of a
letter addressed to plaintiff’s counsel. See Labor Letter. In
the letter, the Department stated that the basis for its denial
was its determination that “workers of the firm were not
adversely affected by increases in imports” and suggested that
“former workers of the firm . . . seek information on other
Court No. 04-00492 Page 27
programs administered by the Department . . . .” Id. Despite
the seeming informality of the Department’s determination, the
denial was indeed final. See Natural Res. Def. Council, Inc. v.
E.P.A., 22 F.3d 1125, 1132–33 (D.C. Cir. 1994) (“[T]he absence of
a formal statement of the agency’s position . . . is not
dispositive: An agency may not, for example, avoid judicial
review merely by choosing the form of a letter to express a
definitive position on a general question of statutory
interpretation.”) (internal citations and quotation marks
omitted). It is apparent that the Department engaged in a review
of plaintiff’s request and denied the same with every intention
of binding plaintiff and with no intention of revisiting the
issue. Thus, the decision to deny plaintiff’s request
constituted a final determination.
Second, the court finds that Labor’s determination was at
least in part based upon an analysis of the § 2272 criteria.
Indeed, it is unlikely that a decision not to extend the duration
of an existing TAA eligibility certification could be based on
substantial evidence without evaluating whether the factors found
in § 2272 are satisfied. This evaluation appears to have been
one of the reasons Labor gave for its decision in its September
24, 2004 letter. Therefore, because the Department’s denial of
ISU’s request to amend the 2002 Certification was a final
determination relating to the § 2272 criteria, jurisdiction is
Court No. 04-00492 Page 28
had pursuant to 19 U.S.C. § 2395(c) and 28 U.S.C. § 1581(d)(1).
Should it be that the foregoing analysis does not provide a
basis for jurisdiction, however, 28 U.S.C. § 1581(i)(4) provides
an independent basis for hearing plaintiff’s case. Subsection
1581(i)(4) empowers the Court to hear complaints regarding an
agency’s administration and enforcement of the trade laws. See
28 U.S.C. § 1581(i)(4) (“[T]he [Court] shall have exclusive
jurisdiction of any civil action commenced against the United
States, its agencies, or its officers, that arises out of any law
of the United States providing for . . . administration and
enforcement with respect to the matters referred to in . . .
subsections (a)-(h) of this section.”). As has been previously
seen, 28 U.S.C. § 1581(d)(1) and 19 U.S.C. § 2395(c) give the
Court authority to review any final determination of the
Department regarding the eligibility of workers to apply for TAA
benefits.
It is clear that plaintiff’s action seeking review of the
Department’s denial of its amendment request is a challenge to
the Department’s administration and enforcement of 19 U.S.C.
§§ 2272 and 2273. In denying plaintiff’s application to extend
the 2002 Certification, the Department was clearly engaging in
the administration and enforcement of that certification.
Therefore, an independent basis for jurisdiction over the instant
matter is found under 28 U.S.C. § 1581(i)(4).
Court No. 04-00492 Page 29
Labor next advances the argument that, should the court find
it has jurisdiction over this matter, plaintiff’s action should
nevertheless be dismissed as having been untimely commenced. See
Def.’s Resp. at 16. This position rests on Labor’s framing of
plaintiff’s request as one seeking reconsideration of the 2002
Certification determination. According to 29 C.F.R. § 90.18(a)
“[a]ll applications [for reconsideration] must be in writing and
must be filed no later than thirty (30) days after the notice of
the determination has been published in the Federal Register.”
According to the Department:
If ISU wanted to appeal Labor’s determination
regarding the date the [2002] [C]ertification
expired, it should have done so within the
time limit to appeal that decision. It did
not do so. Therefore, ISU cannot now avoid
the time limit for appealing that decision by
submitting a request to amend the earlier
decision and then appealing the denial of the
request to amend.
Def.’s Resp. at 16. Thus, because plaintiff did not seek
reconsideration of the Department’s 2002 determination within
thirty days of its issuance, Labor maintains that the court
cannot hear plaintiff’s claim.14
14
It is worth noting that although not cited as a basis
for its denial of plaintiff’s request, the Department now
contends that it has an established policy of dismissing these
requests out-of-hand. See Def.’s Resp. Supplemental Citations at
2 (“It is these type[s] of amendments that Labor later determined
were not within its authority to issue and Labor has advised
defendant’s counsel that it has ceased issuing them.”).
Court No. 04-00492 Page 30
The Department’s position is untenable. A request to amend
an existing certification based on changed circumstances is not
the same as an application for reconsideration of an initial
determination. An application for reconsideration seeks the
correction of an error discoverable at the time the final
determination is issued. The thirty-day period provided by 29
C.F.R. § 90.18(a) confirms that such error must be apparent or
capable of being discovered at that time. The making of the
application for reconsideration, therefore, is unlike a request
for an amendment to an existing certification in that it is not
contingent on a change of circumstances. The adoption of Labor’s
position would require a petitioning group of workers to predict
within thirty days of publication of the determination what
circumstances might exist as much as two years later. In the
present case, the Department would have Weirton look ahead
twenty-two months and determine whether certification should
extend beyond the two-year statutory period. Thus, the court
finds that a petitioning group’s request to amend an existing
certification as the result of a change in circumstances does not
constitute an application for reconsideration as contemplated by
29 C.F.R. § 90.18(a).
As a result of the foregoing, the court finds that it may
properly exercise jurisdiction over plaintiff’s challenge to
Labor’s determination not to extend the 2002 Certification and
Court No. 04-00492 Page 31
that defendant’s other arguments are without merit. The court
refrains from reaching the merits of this matter, however, until
Labor has submitted the complete administrative record with
respect to plaintiff’s amendment request.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that Labor’s determination denying plaintiff’s
request for reconsideration of Labor’s denial of plaintiff’s 2004
Petition is sustained;
ORDERED that defendant’s motion to dismiss Count IV of
plaintiff’s complaint is denied; and it is further
ORDERED that this matter is remanded to Labor with
instructions to assemble and submit to the court the
administrative record regarding plaintiff’s amendment claim by
December 18, 2006.
/s/Richard K. Eaton
Richard K. Eaton
Dated: November 17, 2006
New York, New York