United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, Local 2911 v. United States Secretary of Labor , 33 Ct. Int'l Trade 418 ( 2009 )


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  •                           Slip Op. 09-35
    UNITED STATES COURT OF INTERNATIONAL TRADE
    UNITED STEEL, PAPER AND       :
    FORESTRY, RUBBER,             :
    MANUFACTURING, ENERGY, ALLIED :
    INDUSTRIAL AND SERVICE WORKERS:
    INTERNATIONAL UNION, LOCAL    :   Before: Richard K. Eaton, Judge
    2911,                         :
    :   Court No. 04-00492
    Plaintiff,:
    :
    v.                  :
    :
    UNITED STATES SECRETARY       :
    OF LABOR,                     :
    :
    Defendant.:
    :
    OPINION
    [United States Department of Labor’s final negative determination
    on remand denying plaintiff’s application for trade adjustment
    assistance sustained.]
    Dated: April 30, 2009
    Stewart and Stewart (Terence P. Stewart, Elizabeth J. Drake,
    and Philip A. Butler), for plaintiff.
    Michael F. Hertz, Acting Assistant Attorney General; Jeanne
    E. Davidson, Director, Patricia M. McCarthy, Assistant Director,
    Commercial Litigation Branch, Civil Division, United States
    Department of Justice (Russell A. Shultis), for defendant.
    Eaton, Judge:   In United Steel, Paper and Forestry, Rubber,
    Manufacturing, Energy, Allied Industrial and Service Workers
    International Union, Local 2911 v. United States Secretary of
    Labor, 32 CIT __, Slip Op. 08-45 (Apr. 30, 2008) (not reported in
    the Federal Supplement) (“Steelworkers II”), the court remanded
    Court No.04-00492                                        Page 2
    this matter to the United States Department of Labor (“Labor” or
    the “Department”) for further explanation of its determination to
    deny plaintiff ISU’s1 request for an extension of Weirton Steel
    Corporation’s (“Weirton”) Trade Adjustment Assistance (“TAA”)
    eligibility certification from April 23, 2004 to May 18, 2004.
    On remand, the Department has again reached a negative
    determination.   See Negative Determination on Remand, TA-W-
    54,455, Weirton Steel Corp., Weirton, WV (Dep’t of Labor Aug. 28,
    2008) (the “Remand Results”).
    As in Steelworkers II, jurisdiction lies under 
    28 U.S.C. § 1581
    (i)(4).    See 32 CIT at __, Slip Op. 08-45 at 3-4; Indep.
    Steelworkers Union v. U.S. Sec’y of Labor, 
    30 CIT 1793
    , 1803-08,
    Slip Op. 06-171 at 21-30 (Nov. 17, 2006) (not reported in the
    Federal Supplement) (“Steelworkers I”) (“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.”).
    For the following reasons, Labor’s negative determination
    embodied in its Remand Results is sustained.
    1
    For purposes of continuity, the court again refers to
    plaintiff United Steel, Paper and Forestry, Rubber,
    Manufacturing, Energy, Allied Industrial and Service Workers
    International Union, Local 2911 as “ISU,” in reference to its
    former name, Independent Steelworkers Union.
    Court No.04-00492                                         Page 3
    BACKGROUND
    Weirton was a steel producer.   Because the company was faced
    with “serious difficulties due to import surges” and financial
    hardship, ISU petitioned Labor in mid-2001 to establish the
    eligibility of the Weirton workers to apply for TAA benefits.2
    2
    The group eligibility requirements for TAA benefits are
    as follows:
    (a) In general
    A group of workers (including workers in any
    agricultural firm or subdivision of an
    agricultural firm) shall be certified by the
    Secretary as eligible to apply for adjustment
    assistance under this part pursuant to a
    petition filed under section 2271 of this
    title if [Labor] determines 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
    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
    (continued...)
    Court No.04-00492                                            Page 4
    Pl.’s Rule 56.1 Mot. for J. Agency R. (“Pl.’s Br.”) 3-4
    (citations omitted).     Labor’s determination was affirmative and
    the resulting certification found all Weirton workers, who became
    totally or partially separated from employment on or after July
    3, 2000, eligible to apply for TAA cash benefits.     See Notice of
    Determinations Regarding Eligibility to Apply for Worker
    Adjustment Assistance and NAFTA Traditional Adjustment
    Assistance, 
    67 Fed. Reg. 22,112
     (Dep’t of Labor May 2, 2002) (the
    “2002 Certification”).     Under the statute, the 2002 Certification
    was to remain in effect for two years from the date of
    certification, and thus expire on April 23, 2004.     See 
    19 U.S.C. § 2291
    (a)(1)(B).
    2
    (...continued)
    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
    .     See also 
    19 U.S.C. §§ 2271
    , 2273.
    Court No.04-00492                                         Page 5
    In May 2003, however, approximately one year prior to the
    2002 Certification’s expiration, Weirton filed for Chapter 11
    bankruptcy.   See Pl.’s Br. 7; see also Weirton Steel Corp.
    Voluntary Pet. Chapter 11 Bankr., Admin. R. (“AR”) at 188-89.
    Thereafter, Weirton officials agreed to sell the company’s assets
    to its competitor International Steel Group (“ISG”).      See Pl.’s
    Br. 8.   To complete the sale, Weirton retained some of its
    workers to maintain the plant and to ensure a smooth transition
    of its facility to the new owners.   See Letter Dated Sept. 14,
    2004 from Mr. Terence P. Stewart to Labor, Suppl. Admin. R.
    (“SR”) at 12-15 (the “Stewart Letter”).
    On March 9, 2004, ISU filed a new petition with Labor
    seeking TAA re-certification for Weirton’s workers based on facts
    present during an investigatory period covering the year prior to
    the petition’s filing (March 9, 2003, through March 9, 2004).
    See Weirton Steel Corp. Petition for TAA Dated Mar. 9, 2004 (the
    “2004 Petition”), AR at 2-40.   Labor issued a negative
    determination with respect to this petition on May 14, 2004,
    finding that Weirton’s workers failed to meet the statutory
    requirements for certification.   That is, Labor found that,
    during the investigatory period, increased steel imports did not
    contribute importantly to the worker separations.   See Weirton
    Steel Corp., Weirton, WV: Negative Determination Regarding
    Eligibility To Apply for Worker Adjustment Assistance and
    Court No.04-00492                                         Page 6
    Alternative Trade Adjustment Assistance (Dep’t of Labor May 14,
    2004), AR at 101–03 (the “Negative Determination”); Notice of
    Determinations Regarding Eligibility To Apply for Worker
    Adjustment Assistance, 
    69 Fed. Reg. 31,134
    , 31,135 (Dep’t of
    Labor June 2, 2004) (notice).
    Thereafter, on July 23, 2004, Labor denied plaintiff’s
    request for administrative reconsideration of the Negative
    Determination.    See Weirton Steel Corp., Weirton, WV: Notice of
    Negative Determination Regarding Application for Reconsideration
    (Dep’t of Labor July 23, 2004), AR at 195-97 (the
    “Reconsideration Denial”); Weirton Steel Corp., Weirton, WV:
    Notice of Negative Determination Regarding Application for
    Reconsideration, 
    69 Fed. Reg. 47,184
     (Dep’t of Labor Aug. 4,
    2004) (notice).
    On September 14, 2004, having failed to secure benefits by
    way of a re-certification, ISU wrote Labor to “formally request
    that [Labor] amend the [2002] TAA certification to change its
    expiration date from April 23, 2004, to May 18, 2004, so as to
    include all workers of Weirton Steel who were adversely affected
    by increased imports.”    See Stewart Letter, SR at 12-15.   The
    Stewart Letter details the circumstances that ISU believed
    justified an amendment to extend the 2002 Certification.
    Specifically, it recounts that the 2002 Certification’s
    expiration date of April 23, 2004 “came just a few weeks before
    Court No.04-00492                                         Page 7
    substantially all of the production assets of Weirton Steel
    Corporation were acquired out of bankruptcy” by ISG, and that on
    May 18, 2004 the company ceased to produce steel.    See Stewart
    Letter, SR at 13.   It is those workers who remained with the
    company for the three to four weeks after the 2002 Certification
    expired, but before the Weirton sale was completed, that were the
    subject of Weirton’s request to extend the 2002 Certification.
    Stewart Letter, SR at 13-14.
    According to plaintiff, the remaining workers “were engaged
    in preserving Weirton’s assets and facilities and preparing them
    for the sale to ISG.”3   Stewart Letter, SR at 14.   Plaintiff
    maintained that only an amendment of the 2002 Certification
    “would ensure that all the workers of Weirton Steel who were
    adversely affected by increased imports are included under [the
    2002] Certification and eligible for needed assistance.”    Stewart
    Letter, SR at 14.
    In addition, the Stewart Letter stated that it was
    plaintiff’s “understanding that the Department has previously
    amended TAA certifications to extend the period of eligibility
    where workers have been retained beyond the original expiration
    date of a certification.”   Stewart Letter, SR at 14 n.5 (citing
    3
    The Stewart Letter recounts ISU’s filing of the 2004
    Petition and Labor’s subsequent Negative Determination and
    Reconsideration Denial, since sustained by this court in
    Steelworkers I. See Stewart Letter, SR at 14; Steelworkers I, 30
    CIT at 1803, Slip Op. 06-171 at 31.
    Court No. 04-00492                                        Page 8
    O/Z-Gedney Co., Div. of EGS Elec. Group, Terryville, CT: Amended
    Certification Regarding Eligibility To Apply for Worker
    Adjustment Assistance, 
    69 Fed. Reg. 43,454
     (Dep’t of Labor July
    20, 2004) (“O/Z-Gedney”); Wiegand Appliance Div., Emerson Elec.
    Co., Vernon, AL: Amended Certification Regarding Eligibility To
    Apply for Worker Adjustment Assistance, 
    58 Fed. Reg. 50,198
    (Dep’t of Labor Aug. 20, 2003) (“Wiegand”)).
    By letter dated September 24, 2004, Labor denied ISU’s
    amendment request for two reasons.    See Letter Dated Sept. 24,
    2004 from Labor to Mr. Terence P. Stewart, SR at 16-17 (the
    “Denial Letter”).    The first was that the facts presented in this
    case were distinguishable from the facts of the two
    certifications cited in plaintiff’s amendment request (O/Z-Gedney
    and Wiegand) because, in the case of the Weirton facility,
    production at the plant continued, whereas in the other cases
    “workers were retained to assist with the plant closure after
    production had ceased.”    See Denial Letter, SR at 16 (emphasis
    added).   The second reason was that, after a “full and careful
    investigation for the relevant period,” Labor determined that
    workers’ separation from the company was not due to an increase
    in imports.   This second reason was apparently a reference to the
    2004 Petition for re-certification.    See Denial Letter, SR at 16.
    In Steelworkers I, the court sustained the denial of
    benefits pursuant to the 2004 Negative Determination and
    Court No. 04-00492                                        Page 9
    Reconsideration Denial.    See 30 CIT at 1803, Slip Op. 06-171 at
    21 (sustaining the Department’s determination “because the
    evidence supports Labor’s conclusion that plaintiff did not
    satisfy the statutory requirements for certification”).    The
    court, however, refrained from reaching the merits of ISU’s
    amendment request pending the submission of a supplemental
    administrative record.    See id. at 1808, Slip Op. 06-171 at 31.
    Following submission of the supplemental administrative
    record, further briefing, and review, the court in Steelworkers
    II held that Labor did not explain adequately its decision to
    deny ISU’s request to amend Weirton’s 2002 Certification until
    May 18, 2004.    See Steelworkers II, 32 CIT at __, Slip Op. 08-45
    at 25-27.   Accordingly, Steelworkers II remanded this matter to
    Labor with instructions that the Department further explain its
    determination.   See 32 CIT at __, Slip Op. 08-45 at 26-27.
    STANDARD OF REVIEW
    In cases brought under 
    28 U.S.C. § 1581
    (i), this Court
    applies the default standard of review set forth in the
    Administrative Procedure Act (“APA”) and therefore will “hold
    unlawful and set aside agency action, findings, and conclusions
    found to be . . . arbitrary, capricious, an abuse of discretion,
    or otherwise not in accordance with law . . . .”    See 
    5 U.S.C. § 706
    (2)(A); see also Former Employees of Alcatel Telecomms.
    Court No. 04-00492                                         Page 10
    Cable v. Herman, 
    24 CIT 655
    , 658-59, Slip Op. 00-88 at 6-7 (2000)
    (not reported in the Federal Supplement).    Under this standard,
    “the court (1) must consider whether the decision was based on a
    consideration of relevant factors and whether there has been a
    clear error of judgment, and (2) analyze whether a rational
    connection exists between the agency’s factfindings and its
    ultimate action.”     See Consol. Fibers, Inc. v. United States, 32
    CIT __, __, 
    535 F. Supp. 2d 1345
    , 1354 (2008).    Further, the APA
    provides that, “[t]o the extent necessary to decision and when
    presented, the reviewing court shall decide all relevant
    questions of law, interpret constitutional and statutory
    provisions, and determine the meaning or applicability of the
    terms of an agency action.”    
    5 U.S.C. § 706
    .
    DISCUSSION
    I.   Remand Results
    In the Remand Results, Labor states that its current policy
    regarding amendment requests (which it insists has been in effect
    throughout all proceedings in this case), is to ensure that “the
    certification [will] cover all workers . . . who were adversely
    affected by increased imports of the article produced by the firm
    or a shift in production of the article, based on the
    investigation of the petition.”    Remand Results at 13.   Despite
    the absence of a statutory or regulatory provision on point, the
    Court No. 04-00492                                         Page 11
    Department explains that it “has and continues to amend the
    expiration date of certifications when the facts of the case show
    that the later worker separations are attributable to the basis
    for [the original] certification (the increased imports or shift
    of production to a foreign country).”    Remand Results at 13.
    According to the Department, using the same standard to grant a
    certification in the first instance or extend a certification
    comports with the remedial nature of the TAA statute.      See Remand
    Results at 13-14.
    In addition, Labor notes that amendment requests are rare.
    Remand Results at 17.    When it receives such requests, however,
    the Department states that it reviews them on a case-by-case
    basis to determine if those worker separations occurring after
    the certification’s expiration date are also “attributable” to
    the basis of the original certification.    See Remand Results at
    17.   Labor explains that
    the earlier and later separated workers must
    have identical characteristics (same
    location, same article, and same basis for
    certification) aside from dates of
    separation. It must also be shown that the
    predominant important cause of the later
    worker separation is identical to the
    conditions that were the basis for the
    certification of the earlier separated
    workers.4
    4
    Labor elaborated:
    If the certification was based on increased
    (continued...)
    Court No. 04-00492                                           Page 12
    Remand Results at 17.
    The Department further insists that there has been no change
    in its policy over time.5    See Remand Results at 15 (citing
    Thomson, Inc., Circleville Glass Operations, Circlesville, OH:
    Amended Certification Regarding Eligibility To Apply for Worker
    Adjustment Assistance and Alternative TAA, 
    72 Fed. Reg. 5,750
    (Dep’t of Labor Feb. 7, 2007) (notice) (“Thomson”)).     Finally,
    Labor states:
    The Department has not, to the best of our
    knowledge, amended a certification to extend
    the expiration date except in limited
    circumstances when there has been a plant
    closing and a small number of workers are
    retained past the 2-year expiration date to
    complete shutdown activities. The intent of
    the Department in these cases, as in all
    cases, is for the amended certification to
    cover all adversely affected workers at the
    subject firm or appropriate subdivision
    (based on the investigation of the petition).
    Remand Results at 15.
    4
    (...continued)
    imports, the petitioning worker group must
    show that the increased imports (same
    article, same time periods, etc.) contributed
    importantly to their separations; if the
    certification was based on a shift of
    production, the petitioning worker group must
    show that the same shift of production (same
    article, same country, etc.) was the basis
    for their separations.
    Remand Results at 17.
    5
    Given this assertion, it is not unexpected that the
    Remand Results also state that Labor has taken no steps to notify
    the public of any policy change. See Remand Results at 16.
    Court No. 04-00492                                         Page 13
    As to the significance of Weirton’s plant remaining open,
    the Remand Results state that Labor’s focus in assessing
    amendment requests is not on production facility closure, but
    rather on determining if the later separated workers were
    terminated for the same reasons that formed the basis of the
    original certification.6   See Remand Results at 18-19.    The
    Department thus maintains that “if there was a change in
    circumstance that prevents a causal nexus between the workers’
    separation and the basis for certification, then the Department
    cannot find that the workers’ separation is attributable to the
    basis” for the 2002 Certification.   Remand Results at 18.       In
    Labor’s view, a production facility’s closure (accompanied with
    worker separations) tends to demonstrate the causal nexus
    required to tie the later separated workers to those separated
    earlier, and thus to grant an amendment.   See Remand Results at
    19.   Furthermore, the Department notes that its investigation
    6
    Labor’s original Denial Letter to the Weirton workers
    referenced both continued production and plant closure as being
    significant. In distinguishing Weirton’s situation from past
    cases, the Department wrote:
    In each of these cases [referring to O-
    Z/Gedney and Wiegand], workers were retained
    to assist with the plant closure after
    production had ceased. This is not the case
    for workers at Weirton Steel. Production of
    steel products at the Weirton, West Virginia
    plant continued during the period relevant to
    the investigation.
    Denial Letter, SR at 16-17.
    Court No. 04-00492                                        Page 14
    following the 2004 revealed, not only that the Weirton plant had
    not closed, but that during the period of investigation “sales of
    the subject firm increased” and “there were declining imports or
    little or no increase in imports during the relevant period.”
    Remand Results at 19 (citation omitted).
    In response to the court’s order directing further
    explanation as to why Labor treated those workers separated from
    the company after April 23, 2004 differently from those losing
    their jobs before that date, the Remand Results stress that the
    Department distinguished between these workers “because the
    workers separated before April 23, 2004 belong to a separately
    identifiable worker group.”   Remand Results at 20.   That is,
    Labor found that they were not separated due to the impact of
    foreign trade because its investigation of the period preceding
    the 2004 Petition revealed that increased steel imports did not
    contribute importantly to their eventual separation.     See
    Steelworkers I, 30 CIT at 1803, Slip Op. 06-171 at 21.    Thus,
    Labor asserts, “[w]hile the certification of workers separated on
    or before April 23, 2004 was based on increased imports, worker
    separations after April 23, 2004 resulted from ISG’s decision not
    to continue to employ the Weirton production workers when it
    purchased the operating Weirton plant as part of the May 18, 2004
    sale.”   Remand Results at 20-21 (internal citations omitted).
    In order to address the court’s instruction to explain how
    Court No. 04-00492                                       Page 15
    the Remand Results comport with previous investigations that
    resulted in Labor granting amendment requests, the Department
    examines three prior cases: (1) O/Z-Gedney, 69 Fed. Reg. at
    43,454; (2) Wiegand, 68 Fed. Reg. at 50,198; and (3) Thomson, 72
    Fed. Reg. at 5,751.    Labor states that O/Z-Gedney is
    distinguishable because there the Department amended the
    certification to include a single worker retained at the firm
    assisting with the closedown process.    It adds: “The Department
    amended the certification because there was a causal nexus
    between the workers’ [sic] separation and the plant closure that
    was the result of increased imports.”    Remand Results at 21.
    As for Wiegand, the Department notes that workers in that
    case were also engaged in activities related to a production
    facility closure.    Remand Results at 22 (stating that the
    “workers completed the tracking of outstanding customer orders
    until their termination”).    It again states: “The Department
    amended the certification because there was a causal nexus
    between the worker’s [sic] separation and the plant closure that
    was the result of increased imports.”    Remand Results at 22.
    Likewise, with respect to Thomson, the Remand Results state that
    the subject workers were retained for decommissioning activities
    pursuant to state regulation, and the amendment request was
    granted because Labor determined that there was no break in
    causation.   Remand Results at 22-23.
    Court No. 04-00492                                        Page 16
    Accordingly, Labor states that these past “amendments were
    based on findings that increased imports adversely affected the
    workers separated after the expiration of the certification.”
    Remand Results at 23.   In contrast, “[t]he Weirton workers
    separated after the plant’s acquisition by ISG were not engaged
    in the closedown of that facility, but were actually involved in
    production and maintenance of the plant.”   Remand Results at 23.
    Finally, with respect to the court’s instruction to the
    Department for it to explain why its determination is consistent
    with the remedial nature of the TAA statute, Labor states that,
    although remedial, “the statute does not authorize the granting
    of certification, unlimited by time, in every situation involving
    a sympathetic fact pattern.”   Remand Results at 23-24.
    II.   Prior to the Issuance of the Remand Results, the Department
    Had No Articulated Policy for Extending Certifications
    Despite its claims to the contrary, it is apparent that the
    Department had no articulated policy with respect to extensions
    of certifications prior to the issuance of the Remand Results in
    this case.   While it may be that in its internal discussions
    Labor took into account the factors set forth in the TAA statute
    at 
    19 U.S.C. § 2272
    , its previous determinations extending
    certification did not enunciate reliance on those factors.
    Indeed, the Department’s prior determinations do no more than
    briefly recite the facts surrounding the decisions to extend the
    Court No. 04-00492                                        Page 17
    subject certifications and state that Labor’s intent is to
    include workers adversely affected by increased imports under
    certifications.
    In O/Z-Gedney, for example, Labor’s Federal Register notice
    reads in its entirety:
    In accordance with section 223 of the Trade
    Act of 1974 (19 U.S.C. 2273) the Department
    of Labor issued a Certification of
    Eligibility to Apply for Worker Adjustment
    Assistance on March 27, 2001, applicable to
    workers of O/Z-Gedney Company, Div. of EGS
    Electrical Group, Terryville, Connecticut.
    The notice was published in the Federal
    Register on April 16, 2001 (66 FR 19521). At
    the request of a company official, the
    Department reviewed the certification for
    workers of the subject firm. The workers
    were engaged in the production of electrical
    fittings for the non-residential construction
    industry. New information shows that a
    worker, Ms. Jacqueline Lancioni, was retained
    at the subject firm beyond the March 27,
    2003, expiration date of the certification.
    This employee was engaged in activities
    related to the close-down process until her
    termination on March 26, 2004. Based on
    these findings, the Department is amending
    the certification to extend the March 27,
    2003, expiration date for TA-W-38,569 to read
    March 26, 2004. The intent of the
    Department’s certification is to include all
    workers of O/Z-Gedney Company, Div. of EGS
    Electrical Group, who were adversely affected
    by increased imports. The amended notice
    applicable to TA-W-38,569 is hereby issued as
    follows:
    A worker of O/Z-Gedney Company,
    Div. of EGS Electrical Group,
    Terryville, Connecticut, who became
    totally or partially separated from
    employment on or after January 5,
    2000, through March 26, 2004, is
    Court No. 04-00492                                       Page 18
    eligible to apply for adjustment
    assistance under section 223 of the
    Trade Act of 1974.
    69 Fed. Reg. at 43,454.    Likewise, the Department’s notice in
    Wiegand reads much the same way.    See 68 Fed. Reg. at 50,198.
    Neither O/Z-Gedney nor Wiegand sets forth the policy claimed
    by Labor here, i.e., that Labor will amend expiration dates “when
    the facts of the case show that the later worker separations are
    attributable to the basis for [the original] certification (the
    increased imports or shift of production to a foreign country).”
    Remand Results at 13.   Nor does either determination state any
    facts demonstrating that Labor was acting in a way consistent
    with its claimed policy.
    Labor’s determination in Thomson begins to suggest a policy
    because the Department engaged in a “nexus” analysis consistent
    with the policy it claims here.    See 72 Fed. Reg. at 5,751
    (stating that “the Department determined that there was a causal
    nexus between the subject firm’s shutdown of operations and the
    shutdown workers’ separations and that, therefore, the
    separations of the workers . . . [after the certification’s
    expiration] are attributable to the conditions specified in
    section 222 of the Trade Act”).    Thomson goes on to state,
    however, that “[t]he Department’s decision in this case is
    limited to the precise circumstances of this specific case and
    should not be considered as any indication of how the Department
    Court No. 04-00492                                        Page 19
    would proceed in other cases or in any subsequent rulemaking on
    this subject.”   Id.
    As a result, while it appears the Department has previously
    acted in a manner consistent with the policy it has now set
    forth, the court finds that it had no articulated policy at the
    time the determination not to extend the 2002 Certification was
    made.
    III. The Department Did Not Act in an Arbitrary or Capricious
    Manner
    While Labor had no declared policy with respect to the
    granting of extensions when it declined to extend Weirton’s
    certification, this does not end the court’s inquiry.    The court
    must decide whether the Department’s action in this case violated
    the APA’s arbitrary and capricious standard.     See 
    5 U.S.C. § 706
    (2)(A).   Indeed, in addition to citing to its past practice,
    Labor also claims that it evaluates extension requests on a case-
    by-case basis.   See Remand Results at 17.   Having examined the
    manner by which Labor reached its result in this case, the court
    concludes that the Department did not abuse its discretion or act
    contrary to law in reaching its determination.
    The court bases this conclusion primarily on Labor’s denial
    of ISU’s 2004 Petition.   As previously noted, ISU petitioned
    Labor seeking re-certification for Weirton’s workers on March 9,
    2004, i.e., before the 2002 Certification expired and before ISU
    Court No. 04-00492                                        Page 20
    asked to extend that certification.     See 2004 Petition, AR at 2-
    40.    In its Negative Determination on the 2004 Petition, Labor
    found that during the one-year period prior to the 2004
    Petition’s filing (March 9, 2003, through March 9, 2004),
    Weirton’s steel sales increased, and the company “did not import
    the products it produces . . . .”    Negative Determination, AR at
    102.    Therefore, Weirton’s workers were denied eligibility to
    apply for TAA benefits.    Negative Determination, AR at 103.
    The court sustained these findings in Steelworkers I.     See
    30 CIT at 1803, Slip Op. 06-171 at 21.    Thus, the important
    distinction between this case and those relied upon by plaintiff
    is that, here, there is an intervening determination finding that
    Weirton’s workers were not injured by imports during the period
    March 9, 2003, through March 9, 2004.     See Pl.’s Comments 3
    (citing Am. Standard, Inc., Trenton, NJ: Amended Eligibility to
    Apply for Worker Adjustment Assistance, TA-W-38,582, 
    68 Fed. Reg. 43,757
     (Dep’t of Labor July 24, 2004)).    This determination found
    that the evidence did not support a finding that Weirton was
    still faced with increased steel imports that contributed
    importantly to worker separations.    Thus, unlike the cases on
    which plaintiff relies, here there was substantial evidence
    establishing that Weirton’s workers were not separated from their
    employment due to the impact of foreign trade, as 
    19 U.S.C. § 2272
     requires.    In other words, substantial record evidence
    Court No. 04-00492                                      Page 21
    demonstrated that the conditions that led to the 2002
    Certification no longer existed at the time the workers were
    separated.
    This situation is thus distinguishable from the Department’s
    determination in Thomson.   In Thomson, the remaining workers
    would have been separated during the certification period had
    they not been required by state regulation to stay on the job in
    order to submit a plan concerning the removal of hazardous
    materials from the facility.   Thomson, 72 Fed. Reg. at 5,750.
    Put another way, but for the state regulatory requirements, the
    remaining workers would have been terminated prior to the
    expiration of the certification.   Therefore, the reason for their
    ultimate termination was the impact of foreign trade.   This
    contrasts with Weirton’s situation where Labor’s intervening
    investigation revealed just the oppositeSSthat the company’s
    remaining workers were not, in fact, terminated due to the impact
    of foreign trade.
    As a result, the court cannot conclude that Labor’s reliance
    on the results of its intervening investigation, which this court
    sustained in Steelworkers I, “represents an unreasonable judgment
    in weighing relevant factors” so as to render its determination
    arbitrary and capricious.   Star Fruits S.N.C. v. United States,
    
    393 F.3d 1277
    , 1281 (Fed. Cir. 2005) (citation omitted).    In the
    Remand Results, the Department explained that the workers who
    Court No. 04-00492                                      Page 22
    lost their jobs after April 23, 2004 “belong in a worker group
    that is separately identifiable” from those who lost their jobs
    prior to April 23, 2004 because of both the operation of the law
    and by reason of intervening facts.   Remand Results at 20.   That
    is, the Department reasoned that the 2002 Certification expired
    on April 23, 2004 by operation of 
    19 U.S.C. § 2291
    (a)(1)(B), and
    after that point, it became Labor’s duty to assess whether “the
    events that caused the separations after April 23, 2004 are
    identical to those that were the basis for the certification.”
    Remand Results at 20.   In turn, the Department concluded that
    these workers were not, in fact, similarly situated because
    Weirton’s post-April 23, 2004 workforce was separated from the
    company because of ISG’s decision not to keep these workers on,
    rather than from increased imports.   See Remand Results at 20-21.
    Notwithstanding the court’s finding that Labor has had no clear
    policy for certification extensions prior to the issuance of the
    Remand Results, the court cannot conclude that this distinction
    was unreasonable.
    CONCLUSION
    The court finds that the Department’s Remand Results are
    sufficiently in accordance with the instructions set forth in its
    prior opinion.   Accordingly, the court further finds that Labor
    acted within its discretion, and did not act in an arbitrary and
    Court No. 04-00492                                        Page 23
    capricious manner, in concluding that an amendment to the 2002
    Certification was not warranted here.   Therefore, for the reasons
    stated, the Remand Results are sustained.    Judgment shall be
    entered accordingly.
    /s/Richard K. Eaton
    Richard K. Eaton
    Dated:    April 30, 2009
    New York, New York
    

Document Info

Docket Number: Court 04-00492

Citation Numbers: 2009 CIT 35, 33 Ct. Int'l Trade 418

Judges: Eaton

Filed Date: 4/30/2009

Precedential Status: Precedential

Modified Date: 8/6/2023