Former Employees of Chevron Products Co. v. United States Secretary of Labor

Slip Op. 03-171

UNITED STATES COURT OF INTERNATIONAL TRADE

________________________________________
:
FORMER EMPLOYEES OF CHEVRON
PRODUCTS COMPANY, :

Plaintiffs, :
Court No. 00-08-00409
v. :

UNITED STATES SECRETARY OF LABOR, :

Defendant. :
________________________________________

[Corrected Final Remand Determination, certifying Plaintiffs as eligible to apply for trade adjustment
assistance benefits, is sustained.]

Decided: December 30, 2003

Meeks & Sheppard (Ralph H. Sheppard and Diane L. Weinberg), for Plaintiff.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, and Jeanne E.
Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice (Henry R. Felix); Louisa Reynolds, Office of the Solicitor, United States
Department of Labor, Of Counsel; for Defendant.

OPINION

RIDGWAY, Judge:

Four long years ago, Plaintiffs (“the Workers”) – then employed as “gaugers”1 – lost their

1
As “gaugers” in the petroleum industry, the Workers here were basically responsible for
“testing and determining the quality of crude oil to be purchased and transported.” See Former
Employees of Marathon Ashland Pipeline, LLC v. Chao, 26 CIT ____, ____, 215 F. Supp. 2d 1345,
1347 (2002). Specifically, the Workers labored at “well head[s] and or crude oil tanks,”performing
various tasks to determine whether crude oil should be purchased – “[c]heck[ing] temperature,
gaug[ing] the amount of crude in the tank, tak[ing] samples for gravity test and grind out for BS&W,
Court No. 00-08-00409 Page 2

jobs with the Roosevelt Terminal unit of Chevron Products Company (“CPDS”), due to increased

imports of oil. Although the Workers timely applied to the U.S. Department of Labor (“Labor

Department”) for certain benefits, those benefits were denied.

The Workers brought this action to contest the Labor Department’s determinations denying

their petition for transitional adjustment assistance benefits under the North American Free Trade

Agreement (“NAFTA”) Implementation Act, and denying them benefits as “secondarily-affected

workers” under the Statement of Administrative Action accompanying the NAFTA Implementation

Act. Complaint; 65 Fed. Reg. 30,442, 30,444 (May 11, 2000); 65 Fed. Reg. 46,988-89 (Aug. 1,

2000); AR 18-19, 32-38.2 However, as discussed in greater detail below, the NAFTA-TAA petition

that is the predicate for this action was spawned by the Workers’ earlier petition under the general

trade adjustment assistance provisions of the Trade Act of 1974 (the “TAA” statute). And that

petition, in turn, implicates another petition filed earlier, under the same statute, by a related group

of workers. This action thus involves three separate, intertwined Labor Department investigations.

and check[ing] the bottom of the tank for water or impurities.” If the samples were satisfactory and
all tests were passed, “a crude oil run ticket [was] written up” and “drivers were dispatched to the
location . . . [to] load[ ] the crude oil on [their] truck[s] and transport[ ] it” to the refineries. Former
Employees of Chevron Products Co. v. U.S. Sec’y of Labor, 26 CIT ____, ____ 245 F. Supp. 2d
1312, 1319 (2002) (“Chevron I”) (citation omitted).
2
Because this action was remanded to the agency, there are two separately-paginated
administrative records – the initial Administrative Record, and the Supplemental Administrative
Record (compiled in the course of the first remand). Further, because this action includes
confidential information, there are two versions of each of those records. Citations to the public
version of the Administrative Record are noted as “AR ___,” while citations to the confidential
version are noted as “CAR ___.” There are no references herein to either the public version or the
confidential version of the Supplemental Administrative Record. Moreover, because the Labor
Department certified the Workers after the action was remanded for the second time, the agency did
not further supplement the administrative record filed with the Court.
Court No. 00-08-00409 Page 3

Jurisdiction lies under 19 U.S.C. § 2395(c) and 28 U.S.C. § 1581(d)(1) (1994).3 Pending

before the Court is the Labor Department’s Notice of Revised Determination on Reopening

(Corrected: September 25, 2003) (“Corrected Final Remand Determination”). See 68 Fed. Reg.

58,710 (Oct. 10, 2003). The Labor Department has now certified the Workers as eligible to apply

for benefits – albeit almost four years after their initial application. Moreover, significantly, that

certification is based not on any newly-discovered information but, instead, on the Labor

Department’s belated identification of an error that it committed in February 2000 (when it denied

the Workers’ initial TAA petition).

Because it is a correction of the Labor Department’s error in reviewing the Workers’ TAA
petition, the certification at bar is under the general TAA statute, rather than the NAFTA transitional
adjustment assistance (“NAFTA-TAA”) statute.4 Specifically, the Labor Department has certified
that:

All workers of Chevron Products Company, Roosevelt, Utah, who became totally or
partially separated from employment on or after January 4, 1999, through two years
from the date of certification, are eligible to apply for adjustment assistance under
Section 223 of the Trade Act of 1974.

68 Fed. Reg. 58,710 (Oct. 10, 2003).5 The Workers have advised that they are satisfied with that

3
Except as otherwise expressly noted, statutory citations in this opinion are to the 1994
version of the U.S. Code. However, the pertinent text of the cited provisions remained the same at
all times relevant herein.
4
Compare 19 U.S.C. § 2271 et seq. with 19 U.S.C. § 2331 .
5
The Government has confirmed that this certification covers not only gaugers, but all
affected employees of Chevron Products Company (including truck drivers). See Transcript of
Teleconference of Sept. 16, 2003 (“Tr.”) at 25-27.
Court No. 00-08-00409 Page 4

certification. See Letter to Court from Counsel for Plaintiffs (Sept. 26, 2003). Accordingly, with

the observations and clarifications that follow, the Labor Department’s Corrected Final Remand

Determination in this matter is sustained.

I. Background

A. The Trade Adjustment Assistance Laws

Chevron I included a brief overview of the United States’ trade adjustment assistance laws,

which are generally designed to address jobs lost due to increased international trade. See generally

Chevron I, 26 CIT at ____, 245 F. Supp. 2d at 1317-18, and authorities cited there. Worker benefits

available under the program established by the Trade Act of 1974 (“the TAA program”) – including

employment services, appropriate training, job search and relocation allowances, and income support

payments – are denominated “trade adjustment assistance” (“TAA benefits”), while those available

under the NAFTA Implementation Act, including the related Statement of Administrative Action

(“the NAFTA-TAA program”), are referred to as “transitional adjustment assistance” (“NAFTA-

TAA benefits”). Id. However, the two programs are very similar. For the sake of convenience, both

are generally referred to herein as “trade adjustment assistance,” except as otherwise specifically

noted.6

Similarly, the Government has confirmed that, as the phrase is used in the text of the
certification in the Corrected Final Remand Determination, the “date of certification” is September
25, 2003. See Letter to Court from Counsel for Defendant (Oct. 1, 2003).
6
See generally Former Employees of Chevron Products Co. v. U.S. Sec’y of Labor, 27 CIT
____, ____ n.2, 279 F. Supp. 2d 1342, 1344 n.2 (2003) (“Chevron II”) (comparing TAA and NAFTA
programs). See also Tr. at 27-28 (counsel for the Government explains that there is no significant
difference in the benefits available under the TAA statute versus the NAFTA-TAA statute).
Court No. 00-08-00409 Page 5

As Chevron I explained, the trade adjustment assistance laws are remedial legislation and,

as such, are to be construed broadly to effectuate their intended purpose. Chevron I, 26 CIT at ____,

245 F. Supp. 2d at 1318 (citations omitted). Further, both “because of the ex parte nature of the

certification process, and the remedial purpose of [the statutes], the [Labor Department] is obliged

to conduct [its] investigation with the utmost regard for the interests of the petitioning workers.”

Stidham v. U.S. Dep’t of Labor, 11 CIT 548, 551, 669 F. Supp. 432, 435 (citing Abbott v. Donovan,

7 CIT 323, 327-28, 588 F. Supp. 1438, 1442 (1984) (quotations omitted) ).

Thus, while the Labor Department is vested with considerable discretion in the conduct of

its investigation of trade adjustment assistance claims, “there exists a threshold requirement of

reasonable inquiry.” Former Employees of Hawkins Oil and Gas, Inc. v. U.S. Sec’y of Labor, 17

CIT 126, 130, 814 F. Supp. 1111, 1115 (1993). Courts have not hesitated to set aside agency

determinations which are the product of perfunctory investigations. See generally Former

Employees of Ameriphone, Inc. v. United States, 2003 Ct. Intl. Trade LEXIS 135, at *5 (Oct. 24,

2003), 27 CIT ____, ____, ____ F. Supp. 2d ____, ____ (2003), and cases cited there.

B. The History of This Case

As Chevron II noted, this case quickly took on a life of its own. By the time that opinion

issued, remanding the action to the Labor Department yet again, the agency already had been

accorded no fewer than seven “bites at the apple.” Chevron II, 27 CIT at ____, 279 F. Supp. 2d at

1344-45.

Congress recently consolidated the TAA and NAFTA-TAA programs into a new, expanded
benefits program under the Trade Act of 2002. See Pub. L. No. 107-210, § 113, 116 Stat. 933, 937
(2002).
Court No. 00-08-00409 Page 6

As explained in Chevron II, the Labor Department’s first two “bites” involved the agency’s

consideration of the Workers’ initial petition for benefits under the TAA statute – the statute under

which they have now been certified. 27 CIT at ____, 279 F. Supp. 2d at 1345-46. As set forth in

section I.B.3 below, the Workers filed their petition for NAFTA-TAA benefits – the petition directly

at issue in this action – only after their TAA petition was denied. See generally Chevron II, 27 CIT

at ____, 279 F. Supp. 2d at 1346.

1. The TAA Petition

Following their termination by CPDS on October 31, 1999, the Workers promptly filed a

TAA petition with the Labor Department. AR 4. Just a few weeks later, on November 24, 1999,

the agency notified them that, in fact, they were already eligible for TAA benefits, under petition TA-

W-36,295 filed previously by former employees of another Chevron entity – Chevron USA

Production Company (“CPDN”) – which had been granted in July 1999. See AR 4, 5; 64 Fed. Reg.

43,722, 43,724 (Aug. 11, 1999); see also 64 Fed. Reg. 61,940 (Nov. 15, 1999).

However, when officials at the Utah Department of Workforce Services began to make plans

to proceed with training for the Workers, they discovered that the men’s names did not appear on

the list of those eligible for benefits. See AR 4. Upon further inquiry, CPDN representatives told

the state officials that – as former employees of CPDS – the Workers here “should not be covered

under the [pre-existing CPDN] certification.” AR 5; see also Memo to U.S. Department of Labor

Office of Trade Adjustment Assistance from State of Utah Department of Workforce Services, re:

NAFTA-TAA Petition Preliminary State Investigation (April 6, 2000) (referring to “attached letter

dated January 4, 2000, in which Ms. Alice Edman, TRA Coordinator explains that the Trade Act
Court No. 00-08-00409 Page 7

Petition for Chevron U.S.A. Production Company (CPDN), #TA-W 36,295 (I-Utah) does not cover

the worker[s] from CPDS”).

2. The Resubmitted TAA Petition

Utah state officials resubmitted the Workers’ original TAA petition to the Labor Department

in early January 2000, noting CPDN’s claim that the Workers here were not covered by the pre-

existing CPDN certification, and requesting that the Labor Department “confirm” the scope of that

certification. The state officials further requested that – if the Labor Department concluded that the

Workers in fact were not covered by the pre-existing certification – the agency consider the Workers’

TAA petition “either as a new petition or . . . as an amendment to the . . . [pre-existing]

certification.” See AR 5.

Despite the State’s express request, the Labor Department failed to review the scope of the

CPDN certification, to confirm whether or not the Workers were covered by it. See Tr. at 12-13.

Instead, the agency proceeded to initiate a new TAA investigation, designated TA-W-37,240. As

discussed in Chevron II, that investigation consisted largely of sending the three-page standard form

TAA “Business Confidential Data Request” questionnaire to CPDS, the Workers’ former employer.

Based solely on CPDS’s responses to the questionnaire, the Labor Department denied the Workers’

TAA petition on the ground that their work did not constitute “production” under the statute. See

Chevron II, 27 CIT at ____, 279 F. Supp. 2d at 1345-46; 65 Fed. Reg. 14,626 (March 17, 2000); AR

16-17.7

7
The Workers subsequently sought administrative reconsideration of the denial of their TAA
petition. That request, too, was denied. See 65 Fed. Reg. 19,387 (April 11, 2000).
Court No. 00-08-00409 Page 8

3. The NAFTA-TAA Petition

While assisting the Workers with their appeal of the Labor Department’s denial of the TAA

petition, the Utah state officials learned for the first time “that Chevron had been buying Canadian

oil.” AR 4. In light of the Canadian imports, a new petition was filed – this time seeking NAFTA-

TAA benefits. AR 1-5.

However, with no further investigation whatsoever, relying exclusively on its file on the TAA

petition, the Labor Department denied the Workers’ NAFTA-TAA petition, which had been

designated NAFTA-3854. Chevron II, 27 CIT at ____, 279 F. Supp. 2d at 1346-47; 65 Fed. Reg.

30,442, 30,444 (May 11, 2000); AR 18-19, 24-28. It is that denial of the Workers’ NAFTA-TAA

petition which directly gave rise to this action.

4. Subsequent Proceedings

Chevron II chronicles the proceedings that followed. The Labor Department’s additional five

“bites at the apple” included the Workers’ application for administrative reconsideration of their

NAFTA-TAA petition, which the agency denied; the filing of this action and the extensions of time

which the agency was granted to, inter alia, decide whether to request a voluntary remand or reach

some kind of settlement (neither of which materialized); the issuance of Chevron I, a fairly scathing

critique of the Labor Department’s investigation and analyses to that point, culminating in a remand

to the agency with specific instructions for further investigation and analysis; the extension of time

granted to the Government for “additional investigation” prior to the filing of the remand results (an
Court No. 00-08-00409 Page 9

extension which, under the circumstances, amounted to a de facto voluntary remand); and,

ultimately, the Labor Department’s negative determination on remand, reaffirming the agency’s

determination that the Workers failed to qualify for benefits. See generally Chevron II, 27 CIT at

____, 279 F. Supp. 2d at 1347-49.

5. Chevron II, the Second Remand, and the Eventual Certification

Based on the administrative record as it then existed, and relying heavily on a recent decision

in another trade adjustment assistance case involving gaugers, Chevron II rejected the Labor

Department’s determination on remand and concluded that the Workers here in fact were engaged

in “production.” 27 CIT at ____, 279 F. Supp. 2d at 1353-55 (citing Marathon Ashland, 27 CIT

____, 277 F. Supp. 2d 1298 (2003) ). Chevron II nevertheless gave the Labor Department one final

“bite at the apple,” ordering a second remand and instructing the agency to further investigate and

make a determination as to whether imports of crude oil contributed importantly to the Workers’

termination and, if so, “under which statute [TAA or NAFTA-TAA] certification would be

warranted” (i.e., whether the relevant imports were from NAFTA countries, or elsewhere in the

world), and reserving judgment on the Workers’ alternative claims to benefits as “support service

workers” and as “secondarily-affected workers.” The results of that second remand were to be filed

with the Court no later than September 2, 2003. 27 CIT at ____, 279 F. Supp. 2d at 1356-57.

Under cover of a letter dated September 3, 2003, the Labor Department submitted its “Notice

of Revised Determination on Reopening,” which referenced the docket number of the Workers’ TAA

petition (TA-W-37,240) – rather than the docket number of their NAFTA-TAA petition (NAFTA-

3854) – and certified the Workers as eligible to apply for TAA benefits (rather than NAFTA-TAA
Court No. 00-08-00409 Page 10

benefits) based on the agency’s determination that the Workers are (were) indeed covered by the pre-

existing CPDN certification, issued in July 1999. See Notice of Revised Determination on

Reopening (Sept. 2, 2003); 68 Fed. Reg. 54,491 (Sept. 17, 2003).8 See also 68 Fed. Reg. 58,710

(Oct. 10, 2003).

Although the September 2, 2003 notice accurately stated that Chevron II ordered the Labor

Department to investigate, on remand, “whether the workers lost their jobs because of increased

imports,” the notice gave no indication that the agency in fact had further investigated that issue.

Even more perplexing, the notice indicated that the agency’s investigation on remand had included

“additional investigation about whether [the Workers here] were production workers” – an issue

which had already been definitively resolved in Chevron II and thus had not been remanded to the

agency.9 Most importantly, the notice offered no explanation for the timing or rationale of the Labor

Department’s “about-face” on the coverage of the Workers here under the July 1999 CPDN

certification. See Notice of Revised Determination on Reopening (Sept. 2, 2003). See also 68 Fed.

Reg. 58,710 (Oct. 10, 2003).

A September 9, 2003 letter to the parties sought clarification of these and other matters,

which were the subject of a subsequent teleconference. See Letter to Counsel from Court (Sept. 9,

8
The September 17, 2003 Federal Register notice inadvertently omitted in its entirety the text
of page two of the four-page Notice of Revised Determination on Reopening, dated September 2,
2003. Compare Notice of Revised Determination on Reopening (Sept. 2, 2003) with 68 Fed. Reg.
54,491 (Sept. 17, 2003).
9
Similarly, the notice stated that Chevron II ordered the Labor Department to consider, on
remand, whether the Workers qualified for benefits as secondarily-affected workers. See Notice of
Revised Determination on Reopening (Sept. 2, 2003); see also 68 Fed. Reg. 58,710 (Oct. 10, 2003).
But, in fact, Chevron II never reached that issue.
Court No. 00-08-00409 Page 11

2003); Transcript of Teleconference of Sept. 16, 2003. Following that teleconference and further

internal consultation and review, the Labor Department issued the Corrected Final Remand

Determination, reflecting various clarifications of and corrections to its September 2, 2003 notice.10

10
The Corrected Final Remand Determination revises the September 2, 2003 notice in two
substantive respects.

First, the Corrected Final Remand Determination clarifies the relationships among the
various related corporate entities. Specifically, the September 2, 2003 notice indicated that “Chevron
Products Company, Roosevelt, Utah is a wholly owned subsidiary of Chevron USA Production
Company” and that the Labor Department therefore considered that “the workers’ firm [was] actually
Chevron USA Production Company.” See Notice of Revised Determination on Reopening (Sept.
2, 2003). The Corrected Final Remand Determination replaced that quoted text with the statement
that “Chevron Products Company, Roosevelt, Utah is affiliated with Chevron USA Production
Company (as both are wholly owned subsidiaries of Chevron USA, Inc.).” See Tr. at 4-5; 68 Fed.
Reg. 58,710 (Oct. 10, 2003). The Corrected Final Remand Determination thus makes it clear that
Chevron Products Company in fact is not a wholly owned subsidiary of Chevron USA Production
Company. Instead, both Chevron Products Company and Chevron USA Production Company are
wholly owned subsidiaries of Chevron USA, Inc.

(It is worth noting that, in two separate places, the Corrected Final Remand Determination
characterizes Chevron Products Company and Chevron USA Production Company as “affiliates”
of one another. But, in a third place, that same determination states the Labor Department’s finding
that “Chevron Products is an appropriate subdivision of Chevron USA.” 68 Fed. Reg. 58, 710 (Oct.
10, 2003) (emphasis added). It is not entirely clear, in this last context, whether the Labor
Department’s reference to “Chevron USA” is shorthand for “Chevron USA Production Company”
(CPDS’s “sister” subsidiary) or for “Chevron USA, Inc.” (CPDS’s parent company). See Tr. at 8-9.
It is thus not clear whether the Labor Department is here treating one subsidiary as an “appropriate
subdivision” of the other for purposes of the agency’s analyses.)

The second substantive difference between the September 2, 2003 notice and the Corrected
Final Remand Determination concerns the rationale underlying the Labor Department’s assertion that
the characterization of the Workers here as “production workers” or “service workers” was mooted
by the agency’s determination that they are eligible for benefits under the pre-existing July 1999
certification. Specifically, the September 2, 2003 notice asserted that, “[s]ince the workers were a
part of a firm which produces an article, crude oil, . . . the characterization of the workers as
production or service workers becomes irrelevant because that distinction only arises in cases where
the workers are employed by separate firms.” Notice of Revised Determination on Reopening (Sept.
2, 2003) (emphasis added). In the Corrected Final Remand Determination, that statement is further
Court No. 00-08-00409 Page 12

See 68 Fed. Reg. 58,710 (Oct. 10, 2003). As that notice explains, the Labor Department’s

certification of the Workers here is predicated on the relationship between CPDS and CPDN, and

on the fact of CPDN’s pre-existing certification:

[B]ecause Chevron Products Company . . . is affiliated with Chevron USA
Production Company (as both are wholly owned subsidiaries of Chevron USA, Inc.)
. . . [,] the two firms [Chevron Products Company (CPDS) and Chevron USA
Production Company (CPDN)] constituted an integrated production process, the final
products of which are crude oil and natural gas.

The [Labor] Department, on July 6, 1999, issued a certification of eligibility for
workers of Chevron USA Production Company in Utah, to apply for trade adjustment
assistance (TA-W-36,295). That certification was supported by increased imports
of crude oil in January-March 1999 compared to the same time period of 1998.
Therefore, the Department certifies the Chevron Products, Roosevelt, Utah, workers
as eligible for assistance under TAA.

Id.

II. Analysis

While the Workers here are no doubt gratified that they have at long last prevailed on their

claim for benefits, they are also – quite understandably – frustrated that it has taken the Labor

Department nearly four years to grant them the relief to which they are entitled. See Tr. at 3-4.

As Chevron I noted, “[w]here, as here, ‘the company under investigation is part of a larger

corporate entity,’ ” Linden Apparel imposes upon the Labor Department “ ‘a duty of providing a

description of the [company’s] organizational structure and of inquiring into how the subject

qualified by the addition of the phrase “or there are subdivisions within the firm that produce articles
that are separately identifiable” at the end of the sentence. 68 Fed. Reg. 58,710 (Oct. 10, 2003). See
also Letter to Counsel from Court (Sept. 9, 2003) at ¶ 5; Tr. at 23-25. The Corrected Final Remand
Determination thus refined the September 2, 2003 notice, to more accurately state existing law by
reflecting Abbott v. Donovan, 6 CIT 92, 570 F. Supp. 41 (1983) and its progeny.
Court No. 00-08-00409 Page 13

company fits into the organization.’ ” Chevron I, 26 CIT at ____ n.14, 245 F. Supp. 2d at 1328 n.14

(quoting Former Employees of Linden Apparel Corp. v. United States, 13 CIT 467, 470, 715 F.

Supp. 378, 381 (1989) ).11 The record in this action evidences the Labor Department’s abject failure

to fulfill that obligation.

The record reveals that, over the course of the years that have passed since the Workers’

termination by CPDS, the Labor Department has been repeatedly reminded of the existence of

entities related to CPDS (including CPDN and Chevron USA, Inc.); the Labor Department has been

repeatedly reminded of both (a) the TAA petition filed by the Workers at issue here, and (b) the

Labor Department’s pre-existing certification of the workers at CPDN; and the Labor Department

has been repeatedly reminded of its obligations under Linden Apparel to investigate the structure and

interrelationships of the various Chevron entities and, moreover, has been explicitly instructed to

consider the agency’s findings and determinations in TAA and NAFTA-TAA investigations

concerning other related Chevron entities.

Indeed, it was the Labor Department itself that first made the connection between the pre-

existing certification of the CPDN workers and the Workers at issue here. As discussed above, the

Labor Department initially advised the Workers here that they were covered by the CPDN

certification in late November 1999, when the Workers had been out of work for less than one

month. See AR 5 (noting that, on November 24, 1999, the Labor Department advised the Workers

11
Accord Former Employees of Carhartt, Inc. v. Chao, 2001 Ct. Intl. Trade LEXIS 77, at *18
(June 13, 2001), 25 CIT ____, ____ n.8, ____ F. Supp. 2d ____, ____ n.8 (2001) (quoting Linden
Apparel); Former Employees of Champion Aviation Prods. v. Herman, 1999 Ct. Intl. Trade LEXIS
44, at **13 (June 4, 1999), 23 CIT 349, 353 (same).
Court No. 00-08-00409 Page 14

that they were covered by the CPDN certification). And the Government concedes that, as a result

of the January 4, 2000 letter to the Labor Department from Utah state officials (which, inter alia,

requested that the agency “confirm” the scope of the pre-existing CPDN certification vis-a-vis the

Workers here), the Labor Department was on notice of the relationships among CPDS, CPDN and

Chevron USA, Inc. at least as of that date. See Tr. at 6; AR 5 (Utah state officials’ letter of January

4, 2000 to Labor Department, referring to CPDN as “A Division of Chevron U.S.A., Inc.” and to

CPDS as “a separate entity of Chevron U.S.A., Inc.”).12

Notwithstanding the state officials’ express request and the Labor Department’s independent

obligation under Linden Apparel to investigate the structure and organization of interrelated

corporate entities, and notwithstanding the information provided to the agency concerning the

relationship between CPDN and CPDS, it appears that the Labor Department simply “dropped the

ball,” abandoning – with no further review – its November 1999 determination that the Workers here

were covered by the pre-existing CPDN certification. Tr. at 13, 18-19. In any event, neither the

Labor Department’s denial of the Workers’ resubmitted TAA petition nor the agency’s determination

declining reconsideration of that denial made any reference to the relationship between CPDS and

CPDN, or to the pre-existing CPDN certification. AR 16-17; 65 Fed. Reg. 19,387 (April 11, 2000).13

12
In the course of the Labor Department’s investigation of the Workers’ resubmitted TAA
petition, a representative of CPDS advised the Labor Department, in no uncertain terms, that CPDS
was “a division of Chevron U.S.A. Inc.” CAR 13.
13
It is not possible to reconstruct with precision the entire chain of events surrounding the
Labor Department’s handling of the Workers’ TAA petition, because – although the agency
ultimately certified the Workers under that petition (rather than their NAFTA-TAA petition) – the
administrative record of the TAA investigation was never filed in this action. It is therefore
impossible to tell from this record whether, for example, the Workers’ TAA petition, or their request
Court No. 00-08-00409 Page 15

A few months later, the Workers once again alerted the Labor Department to the pre-existing

CPDN certification, and to the relationship between CPDS and CPDN. In late May 2000, the

Workers sought administrative reconsideration of their petitions for TAA and NAFTA-TAA,

specifically citing the pre-existing CPDN certification (“TA-W 36, 295 (I-Utah)”). See AR 29-30;

AR 32 (noting that Workers’ undated request for reconsideration was transmitted on May 25, 2000).

The Labor Department’s subsequent determination denying reconsideration expressly acknowledged

the CPDN certification. But the agency apparently gave it short shrift, and failed to consider any

implications of that certification for the Workers here. Yet again, the Labor Department simply

failed to “put two and two together.” See AR 32; 65 Fed. Reg. 46,988 (Aug. 1, 2000) (“With respect

to TA-W-36,295I, the petition is a certification issued on July 6, 1999, applicable to workers of

Chevron Production, Chevron USA, Inc., all locations in Utah. Since the petitioners in this case [the

Workers at issue here] are not employees of that company [CPDN], there is no basis to reexamine

the findings of that investigation.”).

Documents appended to the Workers’ Complaint filed in this action again should have

alerted the Labor Department to both the pre-existing certification of CPDN, and the relationship

between CPDN and CPDS as “sister” subsidiaries of Chevron USA, Inc. One attachment was a

chronology of events in the administrative proceedings, which noted that – in late November 1999

– the Workers here had “received notice back from DOL [the Labor Department] that they were

covered under petition TA-W-36,295 [the pre-existing CPDN certification],” but that it was later

for reconsideration of the denial of that petition, made any reference to the relationship between
CPDN and CPDS, or to the pre-existing CPDN certification.
Court No. 00-08-00409 Page 16

discovered that CPDN was “a different subsidiary” than CPDS. See Memo to Barbara Vail from

Tracy Parrish (July 12, 2000) (emphasis added) (appended to Complaint). A second attachment –

the State of Utah’s Findings and Recommendations on the Workers’ NAFTA-TAA petition –

similarly noted the fact of the pre-existing CPDN certification, and set forth the State’s finding that

“[t]he Chevron Oil company has several subsidiary units that have been impacted [by imports of oil]

as evidenced by approved petition #TA-W 36,295 (I-Utah) for Chevron U.S.A. Production Company

(CPDN).” See Memo to Labor Department from Utah Department of Workforce Services re:

NAFTA-TAA Petition Preliminary State Investigation (April 6, 2000) (emphasis added) (appended

to Complaint).

The Workers even included as Exhibit 1 to their opening brief in this action an actual copy

of the Labor Department’s pre-existing certification of CPDN. See Memorandum in Support of

Plaintiffs’ Motion for Judgment on the Agency Record (“Pls.’ Initial Brief”), Exh. 1 (64 Fed. Reg.

61,940-41 (Nov. 15, 1999), in TA-W-36,295). That same brief, filed in June 2001, summarized the

history of the case, and – in the space of a single page – highlighted the Labor Department’s initial

notification to the Workers of their coverage under the pre-existing CPDN certification, and also

noted that both CPDN and CPDS were “related” divisions of the same parent company – Chevron

USA, Inc. See Pls.’ Initial Brief at 5.14 Elsewhere, the brief asserted that the Labor Department’s

failure to certify the Workers here was “grossly inconsistent with DOL’s prior decisions regarding

14
Statements in the Workers’ initial reply brief were to the same effect. See Plaintiffs’ Reply
to Defendant’s Response in Opposition to Plaintiffs’ Motion for Judgment on the Agency Record
at 2 (reiterating that the plaintiff Workers “are former employees of [CPDS], which is a subsidiary
of Chevron U.S.A., Inc.”).
Court No. 00-08-00409 Page 17

Chevron U.S.A. workers,” citing as one example the pre-existing CPDN certification. See Pls.’

Initial Brief at 7.

Still the Labor Department failed to “connect the dots.” Indeed, incredibly, the

Government’s response brief summarily dismissed Plaintiffs’ Exhibit 1 – the copy of the pre-existing

CPDN certification – as “inapposite,” and urged that it be stricken from the record. See Defendant’s

Response in Opposition to Plaintiffs’ Motion for Judgment Upon the Agency Record at 18-19, 21-

22.

The Government now candidly concedes that the Labor Department was on notice of the

relationships among CPDS, CPDN and Chevron USA, Inc. at least as early as January 2000, but

simply failed to “appreciate the shared parentage” of CPDS and CPDN until the Court’s most recent

remand, in Chevron II. Tr. at 6. While the Government’s candor is to be commended, the Labor

Department’s claims of ignorance are difficult to accept.

Even if the Labor Department in fact somehow managed to overlook the multiple references

to its pre-existing certification of CPDN and to the relationships among CPDS, CPDN and Chevron

USA, Inc. throughout the course of the administrative proceedings (as summarized above), the

agency’s mandate in response to the remand in Chevron I could hardly have been more pointed. See

generally Chevron I, 26 CIT ____, 245 F. Supp. 2d 1312. Referring generally to the pre-existing

CPDN certification (26 CIT at ____ n.5, 245 F. Supp. 2d at 1320 n.5), noting that the plaintiff

Workers’ former employer – CPDS – “is a subsidiary of Chevron U.S.A., Inc.” (26 CIT at ____ n.10,

245 F. Supp. 2d at 1326 n.10), and emphasizing the Labor Department’s affirmative obligation under

Linden Apparel to investigate the interrelationships among relevant corporate entities (26 CIT at
Court No. 00-08-00409 Page 18

____ n.14, 245 F. Supp. 2d at 1328 n.14), Chevron I remanded this action to the Labor Department

with instructions to “conduct a thorough investigation of the duties of the [Workers], in the context

of the oil production scheme of CPDS-related entities.” 26 CIT at ____, 245 F. Supp. 2d at 1328

(emphasis added). Elsewhere, Chevron I emphasized the Labor Department’s need to consider “the

organizational structure of CPDS and related corporate entities.” 26 CIT at ____ n.16, 245 F. Supp.

2d at 1329 n.16. And, discussing the potential significance of the pre-existing CPDN certification,

Chevron I expressly directed that – on remand – the Labor Department consider “the findings and

determinations of the Labor Department in any relevant [TAA or NAFTA-TAA] investigations

concerning other related Chevron entities.” 26 CIT at ____ n.23, 245 F. Supp. 2d at 1333 n.23

(emphasis added). In light of all these circumstances, the Labor Department’s claimed ignorance

of the relationship between CPDN and CPDS, and of the significance of the pre-existing CPDN

certification, simply strains credulity.

In sum, the record in this action evidences not only the Labor Department’s dereliction of

duty under Linden Apparel, but – even more fundamentally – its failure to fulfill its overarching

obligations to “marshal all relevant facts to make a determination” in trade adjustment assistance

cases, and to “conduct [its] investigation with the utmost regard for the interests of the petitioning

workers.” 29 C.F.R. § 90.12 (1999); Stidham, 11 CIT at 551, 669 F. Supp. at 435 (citation omitted).

In a word, 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 regrettably not an isolated one. The relatively high number of requests for

voluntary remands in trade adjustment assistance cases appealed to this Court speaks volumes about
Court No. 00-08-00409 Page 19

the calibre of the Labor Department’s investigations in general, and the Government’s ability to

defend them. See generally Ameriphone, 2003 Ct. Intl. Trade LEXIS 135, at *15-*17, 27 CIT at

____, ____ F. Supp. 2d at ____. Similarly telling is the growing line of precedent involving court-

ordered certifications of workers, evidencing the bench’s mounting frustration with the Labor

Department’s handling of these cases.15 Clearly, there is a message here. Only time will tell whether

the Labor Department, and Congress, are listening.

Much ink has been spilt on this case over the past four years. Needless to say, a proper and

thorough initial investigation would have spared all parties – including the Labor Department, as

well as the Justice Department, the Workers, their counsel, and the Court – untold hours of work.

15
See, e.g., Former Employees of Pittsburgh Logistics Systems, Inc. v. U.S. Sec’y of Labor,
2003 Ct. Intl. Trade LEXIS 111, *17, *45 (Aug. 28, 2003), 27 CIT ___, ___, ___ (concluding that,
after “five bites at the apple,” “further remand [to the Labor Department] would be futile,” and
ordering the agency to certify the workers for trade adjustment assistance); Marathon Ashland, 27
CIT at ____, 277 F. Supp. 2d at 1312-13 (mandating that the Labor Department certify workers for
trade adjustment assistance, observing that “[the Department of] Labor’s and the company’s inability
or unwillingness to answer with any specificity the questions necessary . . . to evaluate the legitimacy
of Plaintiffs’ claim place the court in a difficult position,” and concluding that “[n]othing in the
record indicates that [the Department of] Labor has the resources or willingness to conduct an
investigation beyond making inquiries of [the company]”), appeal docketed, No. 03-1556 (Fed. Cir.
Aug. 18, 2003); Former Employees of Barry Callebaut v. Herman, 26 CIT ____, ____, 240 F. Supp.
2d 1214, 1227-28 (2002) (instructing the Labor Department to certify workers for TAA and NAFTA-
TAA benefits, holding that “[the Department of] Labor’s inadequate efforts have failed to produce
a determination that meets minimum legal standards. Having failed to conduct an adequate
investigation after four opportunities, [the Department of] Labor will not receive another.”), appeal
docketed, No. 03-1113 (Fed. Cir. Nov. 27, 2002).

See also Former Employees of Tyco Elecs. v. U.S. Dep’t of Labor, 27 CIT ____, ____, 264
F. Supp. 2d 1322, 1329-30 (2003) (discussing additional cases in which court’s frustration with the
Labor Department’s unwillingness or inability to comply with remand orders resulted in court-
ordered certifications); Tyco Elecs., 27 CIT ____, ____, 259 F. Supp. 2d 1246, 1248 (2003)
(although remand results were required to be filed on October 7, 2002, the Labor Department still
had not even begun the remand investigation more than a month after that date).
Court No. 00-08-00409 Page 20

But, most significantly, the acts and omissions of the Labor Department deprived the Workers of the

timely relief to which they were entitled.

This is not a case of “better late than never.” The record here – perhaps mercifully – does

not reveal the current employment status of these Workers, or how (and with what success) the men

have endeavored to support themselves and their families in the years since their termination by

CPDS. But, as a general principle, the effectiveness of trade adjustment assistance depends upon

its timeliness; and the effectiveness cannot be measured in dollars alone.

There is a very human face on these cases. Workers who are entitled to trade adjustment

assistance benefits but fail to receive them may lose months, or even years, of their lives.16 And the

devastating personal toll of unemployment is well-documented. Anxiety and depression may set in,

with the loss of self-esteem, and the stress and strain of financial pressures. Some may seek refuge

in drugs or alcohol; and domestic violence is, unfortunately, all too common. The health of family

members is compromised with the cancellation of health insurance; prescriptions go unfilled, and

medical and dental tests and treatments must be deferred (sometimes with life-altering

consequences). And college funds are drained, then homes are lost, as mortgages go unpaid. Often,

marriages founder.

As explained in Int’l Union v. Marshall, the enactment of the trade adjustment assistance

provisions of the Trade Act of 1974 reflected Congress’ recognition “that fairness demanded some

mechanism whereby the national public, which realizes an overall gain through trade readjustments,

16
As Marathon Ashland put it, “TAA cases are different from most litigation before this
court. This is not a situation, such as in customs or antidumping duty cases, where a bond can be
posted to cover anticipated cost and reduce liability.” 27 CIT at ____, 277 F. Supp. 2d at 1313.
Court No. 00-08-00409 Page 21

can compensate the particular . . . 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 [of free trade] that conferred benefits on the nation as a whole would be imposed on a

minority of American workers . . . .” Int’l Union v. Marshall, 584 F.2d 390, 395 (D.C. Cir. 1978)

(citations omitted).17

Those same concerns are at least as real today as they were 25 years ago. Making the case

for trade adjustment assistance, one leading senator recently noted:

No nation is better suited or better prepared to benefit from global trade [than the
United States]. We have the best-educated workers and most productive workforce
in the world, the most mature economy, the most developed infrastructure. We are
in a position to seize the high-skill, high-wage jobs generated by open global
markets, so long as we don’t turn our backs on them.

Just as we can’t turn our backs on trade, we can’t turn our backs on the hard-working
American families who have had their lives ruined by the impersonal forces of trade.

It can be devastating to a family when a parent loses his or her job because a factory
closes down or moves away. That devastation can turn to real fear if losing that job
means losing health insurance.

The reality is that the jobs we gain from trade do nothing to compensate the men and
women who have lost their jobs because of trade.

148 Cong. Rec. S7,828 (daily ed. Aug. 1, 2002) (statement of Sen. Daschle).

And the Administration, too, has pledged its renewed “commit[ment] to assisting workers

whose jobs are threatened by or lost to international competition[, to] acquire the skills necessary

to compete in the new economy.” White House Fact Sheet, “What is Trade Adjustment

17
The same concerns drove enactment of the transitional adjustment assistance provisions of
the NAFTA Implementation Act. See generally Chevron I, 26 CIT at ____, 245 F. Supp. 2d at 1317-
18 (summarizing history, purpose and intent of NAFTA-TAA program).
Court No. 00-08-00409 Page 22

Assistance?”, available at http://www.whitehouse.gov/infocus/internationaltrade/taapager.html.

Trade adjustment assistance programs thus historically have been, and today continue to be,

touted as the quid pro quo for policies of free trade. But Congress and the Labor Department break

faith with American workers if trade adjustment assistance programs are not adequately funded and

conscientiously administered.18 As the Chairman of the Senate Finance Committee has sagely

cautioned, “[A]n honest, responsible program to address the needs of workers . . . who lose their jobs

because of trade is perhaps the most important element of a politically viable program to expand

trade. If it is ignored, efforts at trade liberalization will ultimately fail.” Sen. Max Baucus,

Chairman, Senate Finance Committee, Keynote Address, “Trade Policy in 2002,” Institute for

International Economics, Washington, D.C. (Feb. 26, 2002).

III. Conclusion

Whether as a result of overwork, incompetence, or indifference (or some combination of the

three), the Labor Department – for almost four years – deprived the Workers here of the job training

and other benefits to which they are entitled. Now, finally, the agency has certified them as eligible

18
In light of the current state of the economy, the Labor Department is likely inundated with
trade adjustment assistance claims. But, as Ameriphone noted:

[I]f the agency’s resources are not adequate to enable it to meet its statutory mandate,
the remedy lies with Congress. The volume of claims filed with the agency cannot
serve to excuse it from fulfilling its legal obligations vis-a-vis the legions of
displaced workers. Indeed, if anything, the volume of claims filed serves to
underscore the vital nature of the agency’s mission.

2003 Ct. Intl. Trade LEXIS 135, at *16, 27 CIT at ____, _____ F. Supp. 2d at _____.
Court No. 00-08-00409 Page 23

to apply for trade adjustment assistance; and the Workers have advised that they are satisfied with

that certification. The Corrected Final Remand Determination in this matter is therefore sustained.

See 68 Fed. Reg. 58,710 (Oct. 10, 2003).

Judgment will enter accordingly.

/S/ Delissa A. Ridgway
Judge

Decided: December 30, 2003
New York, New York