Former Emps. of Geokinetics, Inc. v. United States Sec'y of Labor , 290 F. Supp. 3d 1348 ( 2018 )

Slip Op. 18-11
UNITED STATES COURT OF INTERNATIONAL TRADE
FORMER EMPLOYEES OF
GEOKINETICS, INC.,
Plaintiffs,
Before: Claire R. Kelly, Judge
v.
Court No. 16-00057
PUBLIC VERSION
UNITED STATES SECRETARY OF
LABOR,
Defendant.
OPINION
[Sustaining the U.S. Department of Labor’s second remand determination denying
Plaintiffs’ certification as a class of workers entitled to Trade Adjustment Assistance and
Alternative Trade Adjustment Assistance benefits.]
Dated: February 16, 2018
Gregory Carroll Dorris, Pepper Hamilton LLP, of Washington, DC, for plaintiffs.
Agatha Koprowski, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for defendant. With her on the brief were
Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and
Claudia Burke, Assistant Director. Of Counsel on the brief was Tecla A. Murphy, Attorney
Advisor, Employment and Training Legal Services, Office of the Solicitor, U.S.
Department of Labor.
Kelly, Judge: Before the court for review is the U.S. Department of Labor’s
(“Department” or “Labor”) second remand determination filed pursuant to the court’s order
in Former Employees of Geokinetics, Inc. v. United States Secretary of Labor, 41 CIT __,
__, 219 F. Supp. 3d 1392, 1410 (2017) (“Former Employees”). See Notice of Negative
Determination on Second Remand, Oct. 16, 2017, ECF No. 41-1 (“Second Remand
Results”). On second remand, Labor conducted further investigation and reexamined its
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remand determination denying Plaintiffs’ petition for certification for Trade Adjustment
Assistance (“TAA”) and Alternative Trade Adjustment Assistance (“ATAA”). See id. at 5–
14; Second Remand Investigative Report, TA-W-90, 092 at SAR583–99, Oct. 16, 2017,
ECF No. 39-2 (“Second Remand Investigative Report”).1 Labor continued to deny
certification to Plaintiffs as a class of workers entitled to TAA and ATAA benefits under
section 222(c)(2) of the Trade Act of 1974, as amended, 19 U.S.C. § 2272(c)(2) (2012).2
See Second Remand Results at 13–14; Second Remand Investigative Report at
SAR598–99. For the reasons that follow, the Second Remand Results comply with the
court’s order in Former Employees, are supported by substantial evidence, and are
sustained.
BACKGROUND
The court assumes familiarity with the facts of this case as discussed in the
previous opinion, see Former Employees, 41 CIT at __, 219 F. Supp. 3d at 1394–99, and
here recounts the facts relevant to the court’s review of the Second Remand Results.
1
On October 16, 2017, Defendant filed confidential and public versions of the documents
constituting the Supplemental Administrative Record for the second remand proceedings. See
Def.’s Notice of Filing of the Conf. Record, Oct. 16, 2017, ECF No. 39; Def.’s Notice of Filing of
the Public Record, Oct. 16, 2017, ECF No. 40. An index of these documents can be found at
ECF No. 39-1 and ECF No. 40-1, respectively, and the record documents can be found at ECF
No. 39-2 and ECF No. 40-2, respectively. The documents from the supplemental administrative
records (“SAR”) are identified by the title and SAR page numbers assigned by Labor in these
indices.
2
All further references to the Trade Act of 1974, as amended, are to Title 19 of the U.S. Code,
2012 edition.
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PUBLIC VERSION
Plaintiffs are a group of former employees from the survey department of
Geokinetics, Inc. (“Geokinetics”), a company located in Houston, Texas that is engaged
in seismic oil and gas exploration, who were separated from the company as of January
31, 2015. See Petition, Geokinetics, Houston Texas, Facsimile, dated July 31, 2015 at
3:07pm at AR1–5, Sept. 16, 2016, ECF No. 16-1 (“Petition”).3 On July 31, 2015, Plaintiffs’
petition for TAA and ATAA benefits was filed with the Department of Labor, in which
Plaintiffs sought to apply for TAA and ATAA benefits as a group of eligible workers
pursuant to 19 U.S.C. § 2272. See id.; see also 19 U.S.C. § 2272. The Petition alleged
that Plaintiffs’ separations from Geokinetics result from a decision taken by the
Organization of the Petroleum Exporting Countries “to increase oil production [which]
caused widespread lay-offs and job cuts in the Energy Industry.” Petition at AR2.
On September 23, 2015, Labor’s Office of Trade Adjustment Assistance (“OTAA”)
began its investigation into Plaintiffs’ petition pursuant to 19 U.S.C. § 2272 by requesting
information from Geokinetics related to the company’s business, sales, and Plaintiffs’
terminations. See Email and attached Business Data Request, ETA-9043A, between
[Ms. A], Program Analyst, DOL, OTAA and [Geokinetics official], dated Sept. 23, 2015 at
4:18pm at AR18–28; Email and attached Business Data Request, ETA-9043A, between
[Ms. A], Program Analyst, DOL, OTAA and subject firm company official, [Mr. C],
3
On September 16, 2016, Defendant filed confidential and public versions of the documents
constituting the Administrative Record for the remand proceedings. See Def.’s Notice of Filing of
the Conf. Record, Sept. 16, 2016, ECF No. 15; Def.’s Notice of Filing of the Public Record, Sept.
16, 2016, ECF No. 16. An index of these documents and the documents themselves can be
found at ECF No. 15-1 and ECF No. 16-1, respectively. The documents from the administrative
records (“AR”) are identified by the title and AR page numbers assigned by Labor in these indices.
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Geokinetics, dated Sept. 23, 2015 at 4:18pm at AR29–40; see 19 U.S.C. § 2272. In early
November 2015, Geokinetics returned the questionnaire providing information regarding
Plaintiffs’ worker group and information relating to the company’s business, sales, and
the termination of Plaintiffs, to the DOL’s OTAA. See Email between [Ms. X], Program
Analyst, DOL, OTAA, (“DOL Analyst”) and [Ms. Y], Geokinetics’ Vice President, General
Counsel, and Corporate Secretary (“Geokinetics’ General Counsel”) attached
Geokinetics Inc. Business Data Request signed Nov. 3, 2015, Geokinetics Corporate
Legal Structure charts, and two emails, with attachments, from the 2016 remand
investigation, May 02, 2017 4:53 PM at SAR46–54 (providing a copy of Geokinetics’
original Business Data Request (“BDR”) questionnaire responses) (“Original BDR
Resp.”).
In its response to the original questionnaire, Geokinetics attributed Plaintiffs’
terminations to a decline in the oil and gas sector to which Geokinetics provides services,
caused by “a sustained collapse in the price of oil,” resulting in a corresponding decrease
in “exploration activity, which has greatly reduced the need for our highly specialized
services.” Original BDR Resp. at SAR49. On January 16, 2016, Labor issued a negative
determination denying Plaintiffs’ petition for certification as a worker group eligible for TAA
and ATAA benefits. See Investigative Report, TA-W-90, 092 at AR90–92 (“Original
Investigative Report”); [Geokinetics] Negative Determination Regarding Eligibility To
Apply for Worker Adjustment Assistance at AR93–98 (“Original Negative Determination”).
Labor found that: (1) imports of services like or directly competitive with the services
supplied by Geokinetics had not increased; (2) Geokinetics did not shift the supply of
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seismic data acquisition, or like or directly competitive services, to a foreign country or
acquire such services from a foreign country; (3) Geokinetics is not a supplier of services
to a firm that employs workers that have been certified as eligible for TAA or ATAA
benefits; and (4) Geokinetics does not act as a downstream producer to a firm that
employed a group of workers who had been certified as eligible for TAA or ATAA benefits.
See Original Negative Determination at AR97–98.
On April 1, 2016, Plaintiffs commenced this action against the Department of
Labor. Summons, Apr. 1, 2016, ECF No. 1. On June 2, 2016, Defendant, unopposed by
Plaintiffs, requested remand to enable Labor to “conduct further investigation and
redetermine whether certain current and former employees of Geokinetics are eligible for
certification for [TAA] benefits.” Unopposed Mot. for Voluntary Remand at 1, June 2,
2016, ECF No. 8. In its motion, Defendant acknowledged that “Labor did not address
whether there has been an increase in relevant imports of articles,” as the agency is
required to do pursuant to 19 U.S.C. § 2272(a)(2)(A)(ii)(I)–(III). Id. at 2–3; 19 U.S.C.
§ 2272(a)(2)(A)(ii)(I)–(III). The court granted Defendant’s motion for remand. See Order,
June 3, 2016, ECF No. 9.
During the first remand investigation, Labor requested from Geokinetics new
employment, sales, and import data for the years 2013 and 2014, as well as for the
periods January through June 2014 and January through June 2015. See Email and
attached Business Data Request, between [DOL Analyst] and [Geokinetics’ Counsel],
dated July 05, 2016 5:47pm at AR122–23. Labor’s questionnaire specifically requested:
(1) a description of articles manufactured by the subject firm, their end uses, and whether
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the articles are incorporated as components into another article; (2) information on
whether the subject firm imported or acquired from a foreign country articles like or directly
competitive with the articles it produces; (3) information on whether the subject firm
imported articles that incorporate an article like or directly competitive with the articles it
produces; (4) information on whether the subject firm shifted production of articles like or
directly competitive with articles it produces to another country or whether such a shift in
production is scheduled; (5) information on whether the firm experienced a decline in
sales to a customer located outside the United States; and (6) information on whether the
subject firm conducts business with any firm whose workers have been certified under
the TAA program. See id. at AR124–31. Geokinetics provided the majority of the
information requested. See id. at AR125–32.
On September 16, 2016, Labor filed its first remand determination, in which it
continued to deny Plaintiffs’ certification as a class of workers eligible to apply for
adjustment assistance. See [Geokinetics, Inc.] Notice of Negative Determination on
Remand at 8, Sept. 16, 2016, ECF No. 14-1 (“First Remand Results”); see also [First]
Remand Investigative Report, TA-W-90, 092, Geokinetics at AR153–60, Sept. 16, 2016,
ECF No. 15-1 (“First Remand Investigative Report”). In the First Remand Results, Labor
determined that: (1) a significant number or proportion of workers at the subject firm is
totally or partially separated, or threatened with such separation; (2) industry data shows
that aggregate imports of oil and gas during the relevant period decreased; (3)
Geokinetics’ sales/production increased during the relevant period; (4) Geokinetics did
not shift the production of articles like or directly competitive with oil to a foreign country;
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(5) Geokinetics is not a supplier to a firm that employs workers that have been certified
as eligible for TAA or ATAA benefits; and (6) Geokinetics does not act as a downstream
producer to a firm that employed a group of workers who had been certified as eligible for
TAA or ATAA benefits. First Remand Results at 6–7 (citing Original Investigative Report
at AR90–92).
In Former Employees, the court determined that the First Remand Results were
not supported by substantial evidence. Former Employees, 41 CIT at __, 219 F. Supp.
3d at 1394, 1410. Specifically, the court held that the remand determination must be
remanded again on the grounds that
(1) Labor has not explained why its practice for comparing a firm’s sales
data is reasonable; (2) Labor failed to consider whether like imports
increased absolutely, or explain why it was reasonable not to examine
whether like imports had increased; and (3) Labor failed to consider whether
like imports had shifted to foreign countries, or explain why it was
reasonable not to examine whether like imports had shifted to foreign
countries.
Id., 41 CIT at __, 219 F. Supp. 3d at 1394. The court also remanded Labor’s
determination not to certify Plaintiffs as secondary workers eligible for TAA benefits. Id.
The court determined that Labor had not provided or explained any uniform or
defined practice by which it selects the appropriate time period to analyze whether the
subject firm’s sales decreased absolutely under the increased imports path of the statute.
Id., 41 CIT at __, 219 F. Supp. 3d at 1401; see 19 U.S.C. § 2272(a)(2)(A)(i). The court
found this lack of explanation particularly concerning here, where “Labor solicited
information covering different periods in its initial investigation and on remand without
explanation for or acknowledgment of the difference.” Id., 41 CIT at __, 219 F. Supp. 3d
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at 1401 (noting that, in the investigation, Labor requested sales data for January through
September 2014 and January through September 2015 and, on first remand, requested
sales data for January through June 2014 and January through June 2015). The court
also highlighted that Labor had “defin[ed] its relevant time periods to exclude the months
of July of 2014 and 2015, . . . [without] explain[ing] how it defines these periods for
purposes of assessing whether sales of the subject firm have decreased, nor has it
explained why the periods compared here are reasonable.” Id. (citation omitted). The
court ordered that, on second remand, “Labor must explain how it determines the relevant
periods for comparing sales data and explain why its practice is reasonable in light of its
statutory mandate to determine whether the sales or production, or both, of the subject
firm have decreased, or reconsider its determination.” Id., 41 CIT at __, 219 F. Supp. 3d
at 1401–02.
Regarding imports of like articles, the court determined that, while the statute
“instructs Labor to treat oil and natural gas exploration and drilling services as articles
directly competitive with imports of oil and natural gas,” 19 U.S.C. § 2272(c)(2)(B), and
the agency properly considered here whether imports of articles of oil and gas increased,
the statute also requires that the agency consider whether imports of like articles have
increased. See Former Employees, 41 CIT at __, 219 F. Supp. 3d at 1402–06; 19 U.S.C.
§ 2272(a)(2)(A)(ii). The court expressed concern as to why Labor nonetheless had not
considered whether imports of seismic data services, as imports of like articles, had also
increased. See Former Employees, 41 CIT at __, 219 F. Supp. 3d at 1405–07. The court
ordered Labor on second remand to “explain why it is reasonable to consider only oil and
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gas imports, which the statute instructs are directly competitive with oil and natural gas
exploration and drilling services, and therefore not like imports, in evaluating Plaintiffs’
eligibility for TAA certification.” Id., 41 CIT at __, 219 F. Supp. 3d at 1403.
Regarding any shifts in production of like articles, the court determined that “[t]he
record lacks evidence to support a determination that Geokinetics did not shift production
or services to a foreign country, and it is unclear whether Labor considered a shift by
Geokinetics in seismic data services to foreign countries.” Former Employees, 41 CIT at
__, 219 F. Supp. 3d at 1407. The court emphasized that the statute requires Labor to
consider whether there has been a shift in the production of like or directly competitive
articles to a foreign country, but that Labor, on first remand, “did not consider whether
seismic data services (presumably a like product to the articles produced by Geokinetics)
had been shifted to or been acquired from a foreign country,” and did not “explain why it
was reasonable not to make such an inquiry.” Id., 41 CIT at __, 219 F. Supp. 3d at 1408
(citation omitted). The court ordered Labor to, on second remand, “clarify its approach to
evaluating whether Geokinetics shifted services to a foreign country, explain why it is
reasonable to consider only directly competitive articles, explain what record evidence
supports its conclusion, or reconsider its determination.” Id.
Finally, regarding eligibility for TAA benefits as secondary workers, the court
determined that Labor’s conclusion that Geokinetics is not a supplier or downstream
producer to a firm that employed a group of workers who received certification of eligibility
for adjustment assistance, and its decision not to certify Plaintiffs as secondary workers
eligible for TAA benefits, was unsupported by substantial evidence, see Former
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Employees, 41 CIT at __, 219 F. Supp. 3d at 1408–10, because the decision was “based
upon Geokinetics’ incomplete responses” to the questionnaire the firm received from
Labor. See id., 41 CIT at __, 219 F. Supp. 3d at 1409. Specifically, the court emphasized
that, because Geokinetics had not answered Labor’s question inquiring whether the
company “conducts business with a firm whose workers have been certified under the
TAA program,” Labor’s conclusion that Geokinetics had not conducted business with such
firms was not reasonable. Id. (citation omitted). The court ordered Labor to, on second
remand, “explain what record evidence supports a conclusion that Geokinetics is not a
supplier or downstream producer to a firm whose workers were certified for TAA benefits
as primary workers, what supports a determination that Geokinetics’ loss of business did
not contribute importantly to Plaintiffs’ separation, or reconsider its determination.” Id.
On October 16, 2017, Labor issued the second remand determination. See
Second Remand Results. Responding to the court’s concerns that the agency did not
explain its method for selecting the time period for assessing whether there had been a
decrease in sales or why its selection of time periods in this case was reasonable, Labor
requested additional sales data for July 2014 and July 2015. See id. at 6. Labor
explained that it had not previously requested sales data for July 2014 and July 2015
because its standard practice is to collect data “through the month that just ended at the
time that the petition is filed,” which in this case was July 2015. Second Remand
Investigative Report at SAR591. Nonetheless, because the court’s “remand order
reflected an interest in obtaining more data on the subject firm’s sales by extending the
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period under review through the month of July,” Labor requested data for those months
in the second remand investigation. Id.
Regarding the investigation into an increase in imports pursuant to 19 U.S.C.
§ 2272(a)(2)(A), Labor noted that it does not agree with the court that 19 U.S.C.
§ 2272(c)(2) should be interpreted to require that imports of oil and gas exploration and
drilling services, including seismic data services, should be treated as like imports for the
purposes of the increased imports analysis. Second Remand Investigative Report at
SAR592–93. Nonetheless, Labor noted that, here, the record evidence demonstrates
that Geokinetics did not import seismic data services. See id. at SAR593–94. Labor also
explained that the nature of seismic data services is such that they are provided primarily
on location at the client site, such that “import of these services would involve only those
aspects of the work that can be accomplished remotely.” Second Remand Investigative
Report at SAR595 (citation omitted).
Regarding the investigation into a shift in production or supply pursuant to 19
U.S.C. § 2272(a)(2)(B), Labor again determined that Geokinetics had not shifted its
services to another country or imported or acquired like or directly competitive services
from a foreign country. Second Remand Investigative Report at SAR595; see also 19
U.S.C. § 2272(a)(2)(B).
Finally, regarding the analysis of secondary worker eligibility, Labor concluded that
separated workers are not eligible to be certified as adversely affected secondary workers
pursuant to 19 U.S.C. § 2272(b) because “the investigation revealed that [Geokinetics] is
not a Supplier nor does it act as a Downstream Producer to a firm that employed a group
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of workers who received a certification of eligibility under []19 U.S.C. § 2272(a),” adding
that, “[i]n fact, none of [Geokinetics’] customers were [t]rade certified.” Second Remand
Results at 13.
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction pursuant to 28 U.S.C. § 1581(d)(1) (2012) and 19 U.S.C.
§ 2395(a). The agency's determination must be sustained if it is supported by substantial
evidence in the administrative record and is otherwise in accordance with law. See 19
U.S.C § 2395(b) (providing that the Court may remand Labor’s findings of fact to take
further evidence for good cause); see also 28 U.S.C. § 2640(c) (2012) (making an action
to review a determination by Labor, pursuant to 19 U.S.C. § 2273, reviewable under the
standard provided by 19 U.S.C. § 2395); see also 19 U.S.C. § 2395. Further, “[t]he results
of a redetermination pursuant to court remand are also reviewed ‘for compliance with the
court’s remand order.’” Xinjiamei Furniture (Zhangzhou) Co. v. United States, 38 CIT __,
__, 968 F. Supp. 2d 1255, 1259 (2014) (quoting Nakornthai Strip Mill Public Co. v. United
States, 32 CIT 1272, 1274, 587 F. Supp. 2d 1303, 1306 (2008)).
DISCUSSION
The court remanded Former Employees for Labor to: (1) explain its practice for
determining the relevant time period for assessing whether Geokinetics’ sales had
decreased; (2) consider whether like imports increased absolutely, or explain why it was
reasonable not to examine whether like imports had increased; (3) consider whether like
imports had shifted to foreign countries, or explain why it was reasonable not to examine
whether like imports had shifted to foreign countries; and 4) explain its determination not
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to certify Plaintiffs as secondary workers eligible for TAA benefits. Former Employees,
41 CIT at __, 219 F. Supp. 3d at 1394, 1410. The court will examine, in turn, Labor’s
determinations in the second remand proceeding on each of these issues.
I. Sales Data for Assessing Any Decrease in Sales
In Former Employees, the court stated:
. . . Labor fails to provide any indication that it has a defined practice to
compare sales data for purposes of determining whether sales decreased
to determine eligibility for TAA benefits. Moreover, in this investigation
Labor solicited information covering different periods in its initial
investigation and on remand without explan[a]tion for or acknowledgment
of the difference. Labor may have a reason for defining its relevant time
periods to exclude the months of July of 2014 and 2015, but Labor has not
explained how it defines these periods for purposes of assessing whether
sales of the subject firm have decreased, nor has it explained why the
periods compared here are reasonable. On remand, Labor must explain
how it determines the relevant periods for comparing sales data and explain
why its practice is reasonable in light of its statutory mandate to determine
whether the sales or production, or both, of the subject firm have decreased,
or reconsider its determination.
Former Employees, 41 CIT at __, 219 F. Supp. 3d at 1401–02 (internal citations omitted).
Certain workers who have been affected by an increase in foreign imports or a
shift in production or services to a foreign country are eligible for certification by Labor for
TAA benefits, if Labor determines that certain statutory requirements are met. 19 U.S.C.
§ 2272(a). First, “a significant number or proportion of the workers in such workers’ firm”
must have been separated or be “threatened to become” separated from the firm. Id.
§ 2272(a)(1). If such separation or threat of separation has been established, there are
then two possible paths to certification: 1) the increased imports path, id. § 2272(a)(2)(A),
and 2) the shift in production or services path. Id. § 2272(a)(2)(B). Under the increased
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imports path, Labor must determine: that the firm’s U.S. sales or production decreased
absolutely; that “imports of articles or services like or directly competitive with articles
produced or services supplied” by the subject firm increased; and that such increase
“contributed importantly” to the decrease in sales or production of the subject firm and the
workers’ separation or threat of separation. Id. § 2272(a)(2)(A)(i)–(iii). Labor must make
an affirmative determination on each of these three elements to certify the workers under
the increased imports path. See id.
The statute does not define the time periods for Labor to analyze whether a subject
firm’s sales or production “have decreased absolutely” under the increased imports path.
See 19 U.S.C. § 2272(a)(2)(A)(i). In Former Employees, the court remanded on this issue
because Labor appeared not to have a consistent practice for determining the relevant
time period for assessing whether there was or was not an absolute decrease in sales or
production. Former Employees, 41 CIT at __, 219 F. Supp. 3d at 1401–02. The court
noted its concern that, in the original investigation, Labor had requested that Geokinetics
report sales data from January through September of 2014 and January through
September of 2015, while in the first remand proceedings Labor requested sales data
from January through June of 2014 and January through June of 2015. Id. As Labor did
not explain the discrepancy in the dates requested, the court ordered that, on remand,
Labor must articulate “how it determines the relevant periods for comparing sales data
and explain why its practice is reasonable in light of its statutory mandate.” Id.
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Here, on second remand, Labor included sales data for the months of July 2014
and 2015 in the representative base period and relevant investigative period, respectively,
explaining:
The Department’s general practice is to collect sales and employment data
through the month that just ended at the time that the petition is filed.
However, the USCIT remand order reflected an interest in obtaining more
data on the subject firm’s sales by extending the period under review
through the month of July. Therefore, for the second remand investigation
the Department adopted a representative base period of August 2013
through July 2014 and relevant time period of August 2014 through July
2015 for sales and employment as well as imports according to 29 C.F.R.
[§] 90.2.
Second Remand Investigative Report at SAR591; see Second Remand Results at 12.
“During the second remand investigation, the Department collected additional information
from the subject firm including but not limited to domestic monthly sales data for the
periods of 2013, 2014, and January through July 2014, and January through July 2015.”
Second Remand Results at 6 (citation omitted). Labor has complied with the court’s
request to further explain its methodology for determining the applicable base and
representative periods, and satisfied the request to either explain the exclusion of data
for the months of July 2014 and July 2015 or include data for those months in its review
on second remand. See Former Employees, 41 CIT at __, 219 F. Supp. 3d at 1401–02.
Labor’s determinations on this issue are therefore sustained.
Plaintiffs contend that the determination on second remand is unsupported by
substantial evidence because Labor “did not directly or even indirectly” address the
court’s request that Labor “‘explain how it determines the relevant periods for comparing
sales data and explain why its practice is reasonable in light of its statutory mandate to
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determine whether the sales or production, or both, of the subject firm have decreased,
or reconsider its determination.’” Comments of Pls. the Former Employees of
Geokinetics, Inc. on Second Remand Results at 3, Nov. 27, 2017, ECF No. 45 (“Pls.’ 2nd
Remand Comments”) (quoting Former Employees, 41 CIT at __, 219 F. Supp. 3d at
1401–02). Labor does explain that its “general practice is to collect sales and employment
data through the month that just ended at the time that the petition is filed.” Second
Remand Investigative Report at SAR591; see also Second Remand Results at 12. The
court’s concern in Former Employees, underlying its request that Labor clarify how it
selects the relevant time frames for examination, was that the unexplained discrepancy
between the periods examined in the original investigation and the first remand suggested
that Labor does not have an established practice for determining the relevant time
periods. Former Employees, 41 CIT at __, 219 F. Supp. 3d at 1401. However, Labor
has clarified on second remand that it does indeed have a general practice. See Second
Remand Investigative Report at SAR591; see also Second Remand Results at 12. Labor
also clarified the reason for the date range discrepancy between the original investigation
and the first remand, explaining that “[t]he initial investigation inadvertently requested
employment and sales data for the year-to-date and comparable period through the
month of September which is inconsistent with the Department’s practice regarding the
periods for which this data is requested.” Second Remand Investigative Report at
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SAR584.4 Plaintiffs are correct that Labor did not explain “how it determines the relevant
periods for comparing sales data and explain why its practice is reasonable in light of its
statutory mandate to determine whether the sales or production, or both, of the subject
firm have decreased.” Pls.’ 2nd Remand Comments at 3 (quoting Former Employees, 41
CIT at __, 219 F. Supp. 3d at 1401). Nonetheless, here, on second remand, Labor
explained the date range discrepancy and confirmed that it does have an established
practice for determining the relevant base and investigative periods to review. Plaintiffs
have not argued that Labor does not have such an established practice, or that the
established practice of using the one-year period immediately prior to the petition date is
unreasonable.
Further, as discussed above, Labor must determine that the workers’ firm’s sales
or production, or both, decreased absolutely in order to certify eligibility pursuant to the
increased imports path. 19 U.S.C. § 2272(a)(2)(A). Here, although “[t]he monthly sales
data provided revealed monthly fluctuations during the representative base period and
the relevant time period,” Labor found an overall increase in sales over the course of both
the base period and investigated period. Second Remand Investigative Report at
SAR594–95; see Remand Results at 7. Accordingly, because Labor reasonably
determined that the sales did not decrease absolutely, the first element of eligibility of the
4
Defendant clarifies that, “[c]ontrary to the Court’s inference, Second Remand Order, 219 F.
Supp. 3d at 1401-02, the requests for differing time periods were unrelated to whether the
questionnaire requested products or services data.” Def.’s Resp. Pls.’ Comments on [Labor]’s
Second Remand Results at 13, Dec. 12, 2017, ECF No. 47 (“Def.’s 2nd Remand Comments”).
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increased imports path pursuant to 19 U.S.C. § 2272(a)(2)(A) has not been satisfied. The
court need not reach the other requirements of the increased imports path.5
II. Shifts in Production of Like Articles
In Former Employees, the court remanded Labor’s negative determination under
the shift in production or services path, finding the determination to be unsupported by
substantial evidence. Former Employees, 41 CIT at __, 219 F. Supp. 3d at 1407–08.
The court concluded that Labor’s determination that there had not been a shift in
production or services was unsupported by substantial evidence because, as with the
determination pursuant to the increased imports path, it was not clear that Labor
considered whether there was a shift in production of seismic data services in foreign
countries or acquisition of seismic data services from foreign countries. See id., 41 CIT
5
In Former Employees, the court also remanded on the issue of increased imports because, on
first remand, in considering whether there had been an increase in imports of like or directly
competitive articles, Labor considered only imports of oil and natural gas, which the statute
instructs are directly competitive to the articles produced by Geokinetics. See Former Employees,
41 CIT at __, 219 F. Supp. 3d at 1402–07; 19 U.S.C. § 2272(c)(2)(A). Although Labor had not
found an increase in imports of oil and natural gas, because the statute requires that Labor also
consider increases in imports of “like” articles, the court remanded the issue for Labor to explain
why it is reasonable to not consider whether there has been an increase in imports of seismic
data services, which would be “like” articles, as required by the statute. Id., 41 CIT at __, 219 F.
Supp. 3d at 1402–07; see 19 U.S.C. §§ 2272(a)(2)(A)(ii), (c)(2)(A).
On second remand, Labor complied with the court’s order by considering whether there
had been an increase in imports of seismic data services during the investigated period. Second
Remand Investigative Report at SAR593–94. Declining to adopt the court’s interpretation of the
statute as requiring that it consider imports of seismic data services to be “like” imported articles,
Labor nonetheless considered whether there had been an increase in seismic data services here
and found that the record evidence “reveals that the subject firm and its customers did not import
seismic data services.” Id.; Second Remand Results at 11–12. Because Labor reasonably
determined that there had not been an absolute decline in sales, the court need not reach this
issue, other than to say that Labor complied with the court’s remand order. See Former
Employees, 41 CIT at __, 219 F. Supp. 3d at 1402–07, 1410.
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at __, 219 F. Supp. 3d at 1407–08. The court emphasized that, although Geokinetics’
questionnaire response indicated that the firm had not imported or acquired from a foreign
country like or directly competitive articles, see id., 41 CIT at __, 219 F. Supp. 3d at 1407,
it was “not at all clear that Geokinetics understood the full import of Labor’s question given
Labor’s shift in its approach to consider Geokinetics a producer of an article rather than
a provider of services.” Id., 41 CIT at __, 219 F. Supp. 3d at 1408. The court ordered
that Labor make its methodology more clear and, if it was in fact excluding consideration
of seismic data services from the analysis, explain why doing so is reasonable. Id., 41
CIT at __, 219 F. Supp. 3d at 1407–08.
In order to qualify for adjustment assistance certification under the shift in
production or services path, Labor must initially determine that “a significant number or
proportion of the workers . . . [at the subject] firm have become totally or partially
separated, or are threatened to become totally or partially separated[.]” See 19 U.S.C.
§ 2272(a)(1). If that initial requirement is met, the statute further requires that Labor
consider either (1) whether there has been a shift “in the production of articles or the
supply of services like or directly competitive with the articles produced or services”
supplied by the subject firm to a foreign country, or (2) whether the subject firm “has
acquired from a foreign country articles or services that are like or directly competitive
with articles” which it produces or services it supplies. 19 U.S.C. § 2272(a)(2)(B)(i)(I), (II).
In either case, Labor must then determine that such a shift “contributed importantly” to
the workers’ separation or threat of separation from the subject firm. Id.
§ 2272(a)(2)(B)(ii).
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On second remand, Labor again determined that Geokinetics had not shifted its
seismic data services. Second Remand Investigative Report at SAR595; see also
Second Remand Results at 11–13.6 Indeed, Geokinetics again reported that it had not
shifted its services (which it described in the same questionnaire as “[g]eophysical
[s]urveying and [m]apping [s]ervices”) to another country or countries. [Second Remand]
Business Data Request, TA-W-90, 092 at SAR98–99 (“Second Remand BDR Resp.”).
In the Investigative Report, Labor explained that
[t]he investigation revealed that the subject firm did not shift its services,
which are considered to be the production of articles directly competitive
with imports of oil and with imports of natural gas, or any like or directly
competitive articles to a foreign country, or contract to have oil and natural
gas or a like or directly competitive article, produced in a foreign country.
The subject firm responded that it had not imported or acquired from a
foreign country services like or directly competitive with the services
supplied by the subject firm, and likewise had not shifted like or directly
competitive series to another country.
Second Remand Investigative Report at SAR595 (citation omitted). Further, “based on
information provided by the U.S. Geological Survey[,] seismic data services are primarily
6
In the Second Remand Results, Labor notes that “the investigation revealed that the firm did not
shift the production of oil or natural gas or a like or directly competitive article to a foreign country
or acquire oil or natural gas or a like or directly competitive article from a foreign country.” Second
Remand Results at 12–13. Defendant emphasizes that, although the Second Remand Results
erroneously referred to “like or directly competitive article[s],” rather than the supply of services,
“the record clearly demonstrates that Labor sought information about services like or directly
competitive with Geokinetics’s services[.]” Def.’s 2nd Remand Comments at 27 n.7 (emphases
in original) (citing blank BDR sent to Geokinetics during the second remand proceedings at SAR7
(attached to Email between [DOL Analyst] and [Geokinetics’ General Counsel] attached BDR
Service Cover Letter and ETA-9043b - Business Data Request (Service) form, May 01, 2017
12:18 PM at SAR1–11)). The court agrees with Defendant that, throughout the second remand
proceedings, Labor was clear that the agency was requesting information about a shift in services.
See [Second Remand] Business Data Request, TA-W-90, 092 at SAR99; see also Email between
[DOL Analyst] and [Geokinetics’ General Counsel], attached Public Version of the Court’s April
11, 2017 Order (ECF No. 34), May 02, 2017 4:01 PM at SAR12.
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provided on location and therefore import of these services would involve only those
aspects of the work that can be accomplished remotely.” Second Remand Investigative
Report at SAR595.
In the course of the second remanding proceedings, Labor took steps to ensure
that Geokinetics understood that it was to report whether the firm had or planned to shift
seismic data services to a foreign country or countries. See Def.’s Resp. Pls.’ Comments
on [Labor]’s Second Remand Results at 25–27, Dec. 12, 2017, ECF No. 47 (“Def.’s 2nd
Remand Comments”). In particular, the email correspondence during these proceedings
demonstrates that Labor shared the court’s opinion with Geokinetics’ General Counsel.
See Email between [DOL Analyst], and [Geokinetics’ General Counsel], attached Public
Version of the Court’s April 11, 2017 Order (ECF No. 34), May 02, 2017 4:01 PM at
SAR12. Labor thus effectively ensured that Geokinetics was informed of the court’s
concern that Labor had not made clear, on first remand, that it was requesting from
Geokinetics information on any shift in seismic data services. Because Labor clarified its
inquiry in this way, and emphasized in this context that seismic data services are primarily
provided on-site such that a shift would not be feasible, Second Remand Results at 6;
Second Remand Investigative Report at SAR591, Labor has, on second remand, satisfied
the court’s request and complied with the court’s order. See Former Employees, 41 CIT
at __, 219 F. Supp. 3d at 1407–08, 1410.
Plaintiffs argue that Labor has not sufficiently explained “why it is reasonable to
ignore imports of seismic data services as like the [sic] services in evaluating whether the
subject firm shifted like services to foreign countries and whether the subject firm acquired
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from a foreign country like services.” Pls.’ 2nd Remand Comments at 13. Plaintiffs
contend that this insufficient explanation renders Labor’s determination unsupported by
substantial evidence and not in compliance with the court’s remand order. Id. at 13–14.
However, it is evident from the record that Labor did not ignore imports of seismic data
services in this analysis. See Second Remand Investigative Report at SAR595. It is also
reasonably discernible from the record documents that Geokinetics was on notice during
the second remand proceeding that Labor was seeking information on any shift in seismic
data services. See Email between [DOL Analyst] and [Geokinetics’ General Counsel],
attached Public Version of the Court’s April 11, 2017 Order (ECF No. 34), May 02, 2017
4:01 PM at SAR12. No information has been put forward to suggest that, notwithstanding
Geokinetics’ response, the company did shift its services to a foreign country or countries.
In light of Labor’s clarification, and absent information to suggest that Geokinetics’
response was inaccurate, it was reasonable for Labor to accept as accurate Geokinetics’
response in the second remand questionnaire that it did not shift its services or expect an
upcoming shift in services to foreign companies. Labor’s determination based on that
response was reasonable, and Plaintiffs’ arguments to the contrary are unpersuasive.
III. Secondary Worker Benefits
In Former Employees, the court remanded the issue of whether the separated
workers are not eligible to be certified as adversely affected secondary workers pursuant
to 19 U.S.C. § 2272(b), concluding that “Labor’s determination that Geokinetics is not a
supplier or downstream producer to a firm whose workers received primary worker TAA
certification is unreasonable because it is based upon Geokinetics’ incomplete responses
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to Labor’s Second BDR questionnaire.” Former Employees, 41 CIT at __, 219 F. Supp.
3d at 1409. The court ordered that, on second remand, “Labor must explain what other
evidence on the record supports its determination, inquire further to develop record
information to support its determination, or reconsider its determination.” Id.
To certify a secondary worker as eligible to apply for TAA benefits pursuant to 19
U.S.C. § 2272(b), Labor must find that one of the following is true: “the workers’ firm is a
supplier and the component parts it supplied to the [client] firm accounted for at least 20
percent of the production or sales of the workers’ firm[,]” or “a loss of business by the
workers’ firm with the [client] firm contributed importantly to the workers’ separation or
threat of separation . . . .” 19 U.S.C. § 2272(b)(3)(A)–(B). Both paths of this provision
reveal that, for the subject firm’s workers to be eligible for secondary assistance based
on involvement with a client firm whose workers are eligible for adjustment assistance
benefits, that client firm must be of some significance to the subject firm. Both
subsections ensure a meaningful connection between the separations at a client firm and
the separations at the subject firm.
Here, on second remand, Labor again concluded that separated workers are not
eligible to be certified as adversely affected secondary workers pursuant to 19 U.S.C.
§ 2272(b) because “the investigation revealed that Geokinetics, Inc., Houston, Texas, is
not a Supplier nor does it act as a Downstream Producer to a firm that employed a group
of workers who received a certification of eligibility under []19 U.S.C. § 2272(a),” adding
that, “[i]n fact, none of the subject firm's customers were [t]rade certified.” Second
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Remand Results at 13. Labor does not provide a citation to evidentiary support for this
statement. However, the Investigative Report states:
The second remand investigation also revealed that worker separations
were not caused by a loss experienced by a customer whose workers were
certified eligible to apply for TAA. Furthermore, the subject firm is not a
Supplier nor does it act as a Downstream Producer to a firm whose workers
were certified eligible to apply for TAA. Furthermore, none of Geokinetics,
Inc., Houston, Texas, major customers were listed as trade certified.
Second Remand Investigative Report at SAR598–99 (citation omitted). Labor concluded
that none of Geokinetics’ major customers were listed as trade certified after “a search
conducted of OTAA’s [Management Information Systems] database.” Id. at SAR599
n.34; see Def.’s 2nd Remand Comments at 29–30.
Labor's conclusion as to secondary workers on second remand is supported by
substantial evidence. It is reasonably discernible from a review of the record that Labor
conducted a search of the firms included in Geokinetics’ comprehensive client list and
determined that none of the client firms had been certified as eligible for adjustment
assistance. The questionnaire asks the respondent firm whether “the subject suppl[ies]
services to a firm whose workers have been certified under the TAA program[.]” See
Second Remand BDR Resp. at SAR101. In its second remand questionnaire response,
as in the first remand questionnaire response, Geokinetics did not provide a response to
this question. See Second Remand BDR Resp. at SAR101; see also Geokinetics First
Remand BDR Resp., attached to Email between [DOL Analyst]) and [Geokinetics’
General Counsel], May 02, 2017 4:53 PM at SAR69. Labor subsequently sent
Geokinetics’ General Counsel an email requesting an answer to the question. Email
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between [Geokinetics’ General Counsel] and [DOL Analyst], June 08, 2017 3:47 PM at
SAR105. Geokinetics’ General Counsel responded: “Unfortunately, this is a not a data
point that we track regarding our clients.” Id. No additional emails directly related to this
question appear in the record. Nonetheless, in an email sent two minutes later in
response to an earlier request by Labor in the same email chain,7 Geokinetics’ General
Counsel provided Labor with a list of its clients. Email between [Geokinetics’ General
Counsel] and [DOL Analyst], attached Excel spreadsheet list of customers, June 08, 2017
3:49 PM at SAR106–09 (“June 8 Emails Re Customer Info”). Labor subsequently
requested additional follow-up information and details on Geokinetics’ total revenue
breakdown and top customers by sales figures for the relevant periods in 2014 and 2015,
and information on Geokinetics’ clients attributing to the firm’s declining sales figures in
2015.8 See Emails between [DOL Analyst], [Geokinetics’ General Counsel], and [Ms. Z,
Geokinetics’ Manager, Process and Controls], June 20, 2017–July 26, 2017 at SAR114–
68. Further, Labor also collected business data directly from Geokinetics’ “major
7
Labor informed Geokinetics’ General Counsel that “[i]n order to move the case forward additional
[information] is required,” including “a list of customers from the relevant time periods (Jan-July
2014 and Jan-July 2015)[.]” Email between [Geokinetics’ General Counsel] and [DOL Analyst],
attached Excel spreadsheet list of customers, June 08, 2017 3:49 PM at SAR106–07. Labor, in
a subsequent email, clarified that “[w]e do need the time frames and dollar amount from the top
ten US declining customers as requested on page 5 of the Business Data Request,” Email
between [Geokinetics’ General Counsel] and [DOL Analyst], June 16, 2017 3:07 PM at SAR110,
and requested additional follow-up information and details on the major clients with declining
figures. See Emails between [DOL Analyst], [Geokinetics’ General Counsel], and [Ms. Z,
Geokinetics’ Manager, Process and Controls], June 20, 2017–July 26, 2017 at SAR114–68.
8
Labor’s requests for information were focused on Geokinetics’ U.S. customers because
certification as adversely affected secondary workers depends upon involvement with a firm that
received trade adjustment assistance; adjustment assistance is limited to U.S. firms. See 19
U.S.C. §§ 2271(a), 2272(b).
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customers,” Second Remand Results at 12 (citing Emails between [DOL Analyst] and
[Customers A–X], with completed Business Customer Survey and Business Bid Surveys
attached, at SAR171–552), including the client firms that Geokinetics reported were
responsible for a significant proportion of its decline in sales in 2015. See Email between
[Ms. Z], Geokinetics’ Manager, Process and Controls, and [DOL Analyst], with attached
declining customer information, July 11, 2017 2:48 PM at SAR142 (“July 11 Email with
Declining Customer Info.”); Emails between [DOL Analyst] and [Customers A–X], with
completed Business Customer Survey and Business Bid Surveys attached, at SAR171–
552. It is discernible from these requests and correspondence that Labor searched the
MIS database on at least these firms, if not all of the firms provided in Geokinetics’ client
list.9 Accordingly, even if Labor only searched its database for information related to these
“major clients,” Second Remand Investigative Report at SAR598–99, the top client firms
by revenue and the firms responsible for the decline in sales, the statute’s requirement
under either path of 19 U.S.C. § 2272(b)(3), that the client firm be of significance to the
subject firm to certify the subject firm’s workers as eligible to apply for TAA benefits as
secondary workers, is satisfied.
Plaintiffs argue that Labor’s conclusion is unsupported by substantial evidence
because it is unclear who the “major customers” surveyed are or why the analysis was
limited to them. See Pls.’ 2nd Remand Comments at 14–15. Although Plaintiffs are
9
The list provided by Geokinetics include more than [[ ]] domestic and international
customers. See June 8 Emails Re Customer Info. at SAR108–09; Def.’s 2nd Remand Comments
at 28.
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correct that it is unclear who Geokinetics’ major customers were, a review of the record
demonstrates that Labor repeatedly asked for information on Geokinetics’ customers
accounting for the majority of the firm’s decline in the investigated period, and that Labor
requested (and received) figures and contact information for the top five customers by
revenue for January through June 2014 and 2015. See Emails between [Ms. Z],
Geokinetics’ Manager, Process and Controls, and [DOL Analyst], with attached Excel
spreadsheet list of largest customers, July 06, 2017 11:33 AM at SAR120–26; July 11
Email with Declining Customer Info. at SAR142. Geokinetics provided information on the
clients who were responsible for the majority of the firm’s sales decline in the months
investigated by Labor in 2015.10 See July 11 Email with Declining Customer Info. at
SAR142. These client firms would be those for which “a loss of business by the workers’
firm with the [client firm] contributed importantly to the workers’ separation or threat of
separation . . . .” 19 U.S.C. § 2272(b)(3)(B). Geokinetics’ sales with other client firms did
not decline significantly in the relevant period.11 See July 11 Email with Declining
Customer Info. at SAR142. As Defendant asserts, pursuant to the statute, because,
“before plaintiffs may be certified as secondary workers, the statute requires that the firm
to which Geokinetics supplies services must have accounted for at least 20 percent of its
10
According to the figures provided to Labor by Geokinetics, these client firms accounted for,
respectively, [[ ]]%, [[ ]]%, [[ ]]%, and [[ ]]% (and, collectively, [[ ]]%)
of the decline in sales experienced by Geokinetics during the review period. See July 11 Email
with Declining Customer Info. at SAR142.
11
Specifically, according to the figures provided to Labor by Geokinetics, Geokinetics did not lose
more than [[ ]]% of its sales to any other firm. See July 11 Email with Declining Customer
Info. at SAR142.
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sales or otherwise contributed importantly to the workers’ separation,” here, “even if
Labor’s search had been limited to ‘major’ customers, its methodology would have been
reasonable under the statute.” Def.’s 2nd Remand Comments at 29 n.8. Further, Labor
explains that, “[d]uring the course of the second remand investigation, information was
collected from . . . the workers’ firm’s major customers[.]” Second Remand Results at 12
(citing Emails between [DOL Analyst] and [Customers A–X], with completed Business
Customer Survey and Business Bid Surveys attached, at SAR171–552). The cited
documents in the administrative record include business information for more than ten of
Geokinetics’ customers, including those responsible for the majority of the decline in
sales. See Second Remand Results at 7, 12; July 11 Email with Declining Customer Info.
at SAR142. Although it is not stated expressly, it is reasonably discernible that Labor
included these client firms in its search of the MIS database and that none of the “major
customers” searched were listed as trade certified. See Second Remand Investigative
Report at SAR599 n.34.
Plaintiffs contend that “[t]here are no ‘MIS database’ search results provided in the
[Supplemental Agency Record]; no explanation of what the MIS database is . . .; and no
explanation why such search was limited to just major customers (or how such customers
were selected and how many of the total numbers of customers).” Id. Although Plaintiffs
are correct that the search results are not included in the administrative record
documents, as discussed above, it is reasonably discernible that Labor searched the MIS
database for information regarding whether any of its top clients by revenue and clients
responsible for the majority of the decline in sales had been trade certified. See Second
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Remand Investigative Report at SAR599; Emails between [DOL Analyst], [Geokinetics’
General Counsel], and [Geokinetics’ Manager, Process and Controls], June 20, 2017–
July 26, 2017 at SAR114–68. As these clients accounted for a significant percentage12
of the decline in sales that Geokinetics experienced over the review period, see July 11
Email with Declining Customer Info at SAR139–44, these clients are the clients with the
ability to contribute importantly to the workers’ separation or threat of separation, the
inquiry of concern pursuant to the statute. See 19 U.S.C. § 2272(b)(3)(A)–(B). Without
specific allegations that Labor did not in fact search its database for information about
Geokinetics’ major clients, Plaintiffs’ argument is unpersuasive.
CONCLUSION
For the foregoing reasons, the Department of Labor’s Second Remand Results
comply with the court’s remand order. See Former Employees, 41 CIT at __, 219 F.
Supp. 3d at 1394, 1410. The Second Remand Results are supported by substantial
evidence, and they are therefore sustained. Judgment will enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated:February 16, 2018
New York, New York
12
Specifically, according to the figures provided by Geokinetics to Labor, these clients accounted
for close to [[ ]] of the decline in sales that Geokinetics experienced over the review period.
See July 11 Email with Declining Customer Info. at SAR139–44.