Former Employees of Western Digital Technologies, Inc. v. U.S. Secretary of Labor , 893 F. Supp. 2d 1288 ( 2012 )

Slip Op. 12 - 155
UNITED STATES COURT OF INTERNATIONAL TRADE
FORMER EMPLOYEES OF WESTERN
DIGITAL TECHNOLOGIES, INC.,
PUBLIC VERSION
Plaintiffs,
Before: Donald C. Pogue,
Chief Judge
v.
Court No. 11-00085
U.S. SECRETARY OF LABOR,
Defendant.
OPINION
[negative determination of eligibility to apply for trade
adjustment assistance affirmed]
Dated: December 21, 2012
James R. Cannon, Jr. and Thomas Beline, Cassidy Levy
Kent (USA) LLP, of Washington, DC, for the Plaintiffs.
Antonia R. Soares, Trial Attorney, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice,
of Washington, DC, for the Defendant. With her on the brief
were Stuart F. Delery, Acting Assistant Attorney General, Jeanne
E. Davidson, Director, and Claudia Burke, Assistant Director.
Of counsel on the brief was Jonathan Hammer, Employment and
Training Legal Services, Office of the Solicitor, U.S.
Department of Labor.
Pogue, Chief Judge: Plaintiffs in this action are
former employees of Western Digital Technologies, Inc., Hard
Drive Development Engineering Group, Lake Forest, California.
The Plaintiffs seek review of a negative determination by the
United States Department of Labor regarding their eligibility
for benefits under the federal Trade Adjustment Assistance
Court No. 11-00085 Page 2
program.1 Plaintiffs petitioned for such benefits on behalf of
workers at their firm who, prior to the termination of their
employment in late 2008 to early 2009, were engaged in the
supply of engineering functions for the development of hard disk
drives. See Negative Determination on Remand, 76 Fed. Reg. at
61,746-47.
The court has jurisdiction pursuant to 28 U.S.C.
§ 1581(d)(1) (2006). As explained below, because the agency’s
negative determination is supported by a reasonable reading of
the administrative record, the determination will be affirmed.
BACKGROUND
The Employment and Training Administration of the
Department of Labor (“Labor”) will certify a group of workers as
1
See Notice of Determinations Regarding Eligibility to
Apply for Worker Adjustment Assistance, 75 Fed. Reg. 51,846,
51,849 (Dep’t Labor Aug. 23, 2010) (“Negative Determination”),
aff’d on reconsideration, Western Digital Technologies, Inc.,
Co[r]porate Headqua[r]ters/Hard Drive Development Division, Lake
Forest, CA, 76 Fed. Reg. 10,403, 10,403 (Dep’t Labor Feb. 24,
2011) (notice of negative determination on reconsideration)
(“Negative Determination on Reconsideration”), aff’d on remand,
Western Digital Technologies, Inc.: Hard Drive Development
Engineering Group Irvine (Formerly at Lake Forest), CA, 76 Fed.
Reg. 61,746, 61,747 (Dep’t Labor Oct. 5, 2011) (notice of
negative determination on remand) (“Negative Determination on
Remand”), aff’d on 2d remand, Western Digital Technologies,
Inc., Hard Drive Development Engineering Group Irvine (Formerly
at Lake Forest), CA, 77 Fed. Reg. 8284, 8287 (Dep’t Labor
Feb. 14, 2012) (notice of negative determination on remand)
(“Negative Determination on Second Remand”).
Court No. 11-00085 Page 3
eligible to apply for trade adjustment assistance (“TAA”),2
pursuant to a petition filed under the Trade Act of 1974, if the
agency determines that the workers meet the eligibility criteria
set out in 19 U.S.C. § 2272. 19 U.S.C. § 2272 (Supp. III 2009).3
Section 2272 provides that the primary TAA eligibility criteria4
are met if a “significant number or proportion” of a U.S. firm’s
workers have been or are threatened to be “totally or partially
separated,” and either increased imports5 or a shift abroad of
2
TAA benefits include unemployment compensation, training,
job search and relocation allowances, and other employment
services. Former Emps. of Kleinerts, Inc. v. Herman, 23 CIT 647,
647, 74 F. Supp. 2d 1280, 1282 (1999); see 19 U.S.C. §§ 2295–98
(2006).
3
Plaintiffs’ petition, numbered TA-W-72,949, Compl.,
ECF Nos. 1 & 2, at ¶ c, is governed by the Trade and
Globalization Adjustment Assistance Act of 2009, 19 U.S.C.
§§ 2252-2401g (Supp. III 2009). See Emp’t & Training Admin.,
U.S. Dep’t of Labor, Trade Adjustment Assistance for Workers
(comparison of benefits by petition number), available at
http://www.doleta.gov/tradeact/pdf/side-by-side.pdf (last
visited Dec. 20, 2012). Unless otherwise noted, further
citation to Title 19 of the U.S. Code is to Supplement III
(2009) of the 2006 edition.
4
Section 2272 additionally provides that, subject to
certain conditions, “adversely affected secondary workers” –
upstream suppliers or downstream producers of TAA-certified
firms – may also be eligible for TAA benefits. 19 U.S.C.
§ 2272(c). Plaintiffs do not claim to be covered by this
subsection.
5
See 19 U.S.C. § 2272(a)(2)(A) (providing that TAA
eligibility criteria are met if (i) the sales and/or production
of the laying off firm have decreased absolutely; and (ii) there
has been a concurrent increase in imports of articles or
services “like or directly competitive with” those produced by
(footnote continued)
Court No. 11-00085 Page 4
production or services6 “contributed importantly” to the layoffs.
See 19 U.S.C. § 2272(a); see also Former Emps. of Se. Airlines
v. U.S. Sec’y of Labor, __ CIT __, 774 F. Supp. 2d 1333, 1336
(2011) (“The Trade Act provides for TAA benefits to workers who
have been completely displaced as a result of increased imports
into, or shifts of production out of, the United States.”)
(citing 19 U.S.C. § 2272).
After investigating Plaintiffs’ petition for TAA
certification, Labor issued a negative determination, finding
that TAA eligibility criteria had not been met. Negative
the laying off firm, or articles like or directly competitive
with articles “into which one or more component parts produced
by the firm are directly incorporated” or which are “produced
directly using services supplied by such firm”, or “articles
directly incorporating one or more component parts produced
outside the United States that are like or directly competitive
with imports of articles incorporating one or more component
parts produced by [the laying off] firm”; and (iii) “the
increase in imports described in clause (ii) contributed
importantly to [the] workers’ separation or threat of separation
and to the decline in the sales or production of such firm”).
6
See 19 U.S.C. § 2272(a)(2)(B) (providing that TAA
eligibility criteria are met if (i) “there has been a shift by
such workers’ firm to a foreign country in the production of
articles or the supply of services like or directly competitive
with articles which are produced or services which are supplied
by such firm; or such workers’ firm has acquired from a foreign
country articles or services that are like or directly
competitive with articles which are produced or services which
are supplied by such firm,” and (ii) the shift or acquisition of
articles or services described in clause (i) “contributed
importantly to such workers’ separation or threat of
separation”).
Court No. 11-00085 Page 5
Determination, 75 Fed. Reg. at 51,849. Labor affirmed its
Negative Determination after conducting additional
investigations – first in the course of an administrative
proceeding for reconsideration, then in the course of two
voluntary remand proceedings subsequent to commencement of this
action.7
In response to Labor’s inquiry, the subject firm
explained that the Plaintiffs’ termination was due to a cost-
cutting effort and was not in any way attributable to an
increase in imports or a shifting abroad of any production or
services. See Supplemental Admin. R., ECF No. 22 (“SAR”) at 27.
Labor’s investigations revealed that the subject firm designs
new hard drive products in the United States and mass produces
those hard drives in Asia, employing U.S.-based hard drive
engineers such as Plaintiffs to work as part of the design
process and foreign-based engineers to work as part of the
manufacturing process. See SAR at 30-32. Before the design is
7
See supra note 1. Labor explained that, in addition to
obtaining supplementary information from the subject firm and
soliciting new input from the Plaintiffs, each supplementary
investigation confirmed all previously collected information and
addressed all of Plaintiffs’ allegations, without altering
Labor’s conclusion that the TAA eligibility criteria had not
been met. See Negative Determination on Reconsideration, 76 Fed.
Reg. at 10,403; Negative Determination on Remand, 76 Fed. Reg.
at 61,747; Negative Determination on Second Remand, 77 Fed. Reg.
at 8286-87.
Court No. 11-00085 Page 6
approved for mass production, however, the subject firm
manufactures prototype hard drives, sometimes in the U.S. and
sometimes abroad,8 to ensure that the new designs are functional.
SAR at 11. Although prototypes are produced for internal
product-development purposes, the subject firm sells a portion
of its prototypes after they have been tested. Id. Because the
subject firm considers the creation of a prototype drive to be a
necessary step in the process of designing hard drives, and
because the firm considers the design of new hard drives to be
the “primary function” of all of its U.S.-based hard disk drive
engineers, Plaintiffs’ work at the subject firm was related to
the firm’s domestic production of hard drive prototypes. See id.
at 22. However, the subject firm stated that no portion of the
firm’s domestic production of prototype drives shifted abroad
during the relevant time frame. Id. at 23.
Labor found that “U.S. aggregate imports of articles
like or directly competitive with hard disk drives declined in
the relevant time period.” Negative Determination on Remand,
76 Fed. Reg. at 61,746 (citations to record omitted);
see 19 U.S.C. § 2272(a)(2)(A)(ii) (requiring an increase in like
or directly competitive imports for TAA eligibility pursuant to
8
The firm explained that [[“
”]] SAR
at 22.
Court No. 11-00085 Page 7
part (A) of § 2272(a)(2)). In addition, Labor concluded that
Plaintiffs’ separation from the subject firm was not
attributable to any shift of their work abroad. Negative
Determination on Remand, 76 Fed. Reg. at 61,747; see 19 U.S.C.
§ 2272(a)(2)(B) (requiring a shift to or acquisition from abroad
of relevant articles or services for TAA eligibility pursuant to
part (B) of § 2272(a)(2)). The agency based this conclusion on
its finding that the work of the engineers employed by the firm
abroad, as part of the manufacturing process, was not like or
directly competitive with the services supplied by U.S.-based
engineers like Plaintiffs, who were employed as part of the
design process. See Negative Determination on Remand, 76 Fed.
Reg. at 61,747 (“Because of the stage of production at which the
functions are performed, the work performed by the engineers
domestically and the engineers abroad is not interchangeable.”)
(citations to record omitted); Negative Determination on Second
Remand, 77 Fed. Reg. at 8287 (“Upon review of the facts
collected during the earlier investigations and the additional
information procured through the second remand investigation,
[Labor] has determined that the services provided by engineers
at the subject firm’s Asian facilities are not like or directly
competitive with the services of the engineers located at the
subject facility.”); 19 U.S.C. § 2272(a)(2)(B) (requiring a
shift to or acquisition from abroad of articles or services
Court No. 11-00085 Page 8
“like or directly competitive with” those produced or supplied
by the firm domestically). Accordingly, the agency affirmed its
original negative determination regarding Plaintiffs’
eligibility to apply for trade adjustment assistance. Negative
Determination on Second Remand, 77 Fed. Reg. at 8287.
Plaintiffs now challenge Labor’s Negative
Determination on Second Remand. See Cmts. of Pls. Former
Employees of Western Digital Technologies, Inc. Regarding the
Second Remand Results, ECF Nos. 39 (public) & 40 (confidential)
(“Pls.’ Br.”).
STANDARD OF REVIEW
The Court will uphold Labor’s determination if it is
supported by substantial evidence on the record and is otherwise
in accordance with law. See 19 U.S.C. § 2395(b); Former Emps. of
Se. Airlines, __ CIT at __, 774 F. Supp. 2d at 1335.
Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Former
Emps. of Barry Callebaut v. Chao, 357 F.3d 1377, 1380-81 (Fed.
Cir. 2004) (quoting Universal Camera Corp. v. NLRB, 340 U.S.
474, 477 (1951)). “The reviewing court must take into account
contradictory evidence in the record, but the possibility of
drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported
Court No. 11-00085 Page 9
by substantial evidence.” Am. Textile Mfrs. Inst., Inc. v.
Donovan, 452 U.S. 490, 523 (1981) (internal quotation marks and
citations omitted).
DISCUSSION
At issue is Labor’s determination that TAA eligibility
requirements were not met because neither increased imports nor
shifts of production or services abroad contributed importantly
to Plaintiffs’ separation from the subject firm. Negative
Determination on Reconsideration, 76 Fed. Reg. at 10,403. In
making this determination, Labor gave credence to the company’s
explanation that the termination of Plaintiffs’ employment,
which was announced in December of 2008, was part of a cost-
cutting effort in response to a global economic downturn.
See SAR at 27-31. In the course of its investigation, which
included three follow-up inquiries, Labor found no evidence to
support Plaintiffs’ claims to the contrary. See Negative
Determination on Second Remand, 77 Fed. Reg. at 8287. In
particular, Labor found no evidence to substantiate Plaintiffs’
claim that their separation was due to a shift abroad of the
work that Plaintiffs had performed in the United States. Id.
In challenging Labor’s Negative Determination on
Second Remand, Plaintiffs reiterate their claim that their
separation was due to a shift abroad of the work that they had
Court No. 11-00085 Page 10
performed domestically. Pls.’ Br. at 9-13.9 Plaintiffs claim
that Labor’s finding that the separation was not attributable to
such a shift is not supported by substantial evidence. Id. In
support of this argument, Plaintiffs challenge Labor’s
conclusion that because Plaintiffs’ work was not interchangeable
with the work of the engineers that the subject firm employed
abroad, changes in the workforce abroad could not have affected
Plaintiffs’ worker group, and therefore could not have
“contributed importantly” to the layoffs at issue. Id.;
see Negative Determination on Second Remand, 77 Fed. Reg.
at 8285; 19 U.S.C. § 2272(a)(2)(B). Plaintiffs emphasize record
evidence that 1) the subject firm employs engineers in the
design and production of prototype hard drives both domestically
and abroad; and 2) the engineers employed abroad received
training from the domestic engineers, including some of the
Plaintiffs. See Pls.’ Br. at 10-11.
As Labor explains, however, the conclusion that the
subject firm’s U.S.- and Asia-based engineers perform functions
that are not like or directly competitive with one another is
not inconsistent with the evidence emphasized by the Plaintiffs.
9
Plaintiffs do not offer a reading of the record to
contradict Labor’s conclusion that no increase in imports
contributed importantly to Plaintiffs’ separation from the
subject firm. See Pls.’ Br.
Court No. 11-00085 Page 11
See Negative Determination on Second Remand, 77 Fed. Reg. at
8285-87.
With regard to training, the record reveals that the
subject firm’s business model is to design new products in the
United States and mass manufacture them abroad. Negative
Determination on Remand, 76 Fed. Reg. at 61,747. Having worked
on the product’s design through the prototype stage, the
domestic engineers routinely provide training to the engineers
who will be overseeing the mass production abroad. See id.
(“[T]he firm states that the foreign engineers . . . must be
knowledgeable about the new products [that are developed
domestically] in order to carry out their [manufacturing-
related] work, so foreign engineers visit the United States to
train on the new products to oversee the production at the
manufacturing facilities.”). Given this explanation, the
evidence of training that Plaintiffs emphasize does not compel
the conclusion that the work of the U.S.- and Asia-based
engineers is functionally interchangeable. Id. (“[T]he training
of foreign workers in the U.S. does not show that the roles of
the domestic [engineers] and engineers abroad are
interchangeable.”) (citations to record omitted). That the
subject firm’s foreign (manufacturing) engineers appear
dependent on training provided by the domestic (design)
engineers reasonably supports Labor’s conclusion that the
Court No. 11-00085 Page 12
foreign engineers cannot function as substitutes for the firm’s
domestic engineers. See id. (“According to the subject firm, the
engineering work performed abroad not only requires the
engineers to be present at the manufacturing location, but is
also different and less complex than the development work
performed by the domestic engineers.”).10
With regard to the firm’s design and production of
prototype drives abroad, the investigations revealed that the
nature of the company’s prototype production abroad – and
accordingly the function of the engineers employed in such
production – substantially differs from the company’s domestic
prototype production.11 Plaintiffs argue that the company’s
representations in this regard are contradicted by “numerous
exhibits [on record,] including job listings posted in Malaysia
10
Plaintiffs’ reliance on Elec. Data Sys. Corp., I
Solutions Ctr., Fairborn, Ohio, 71 Fed. Reg. 18,355 (Dep’t Labor
Apr. 11, 2006) (notice of revised determination on remand),
wherein Labor issued a positive determination of TAA eligibility
to former employees who showed that foreign-based workers had
been trained in the production of the same articles as those
produced by the former employees, id. at 18,356, is inapposite.
See Pls.’ Br. at 12-13. Unlike the workers in that case,
Plaintiffs have not shown here, and Labor’s investigations have
not revealed, that the training provided to foreign-based
engineers was substantively identical to that required to
perform Plaintiffs’ own duties and functions within the firm.
See Negative Determination on Remand, 76 Fed. Reg. at 61,747.
11
Specifically, [[“
”]] SAR at 22.
Court No. 11-00085 Page 13
by [the subject firm].” See Pls.’ Br. at 11. But Labor
conducted a detailed analysis of all such exhibits and concluded
that, contrary to Plaintiffs’ assertions, this evidence is
consistent with the company’s representations, and the agency’s
ultimate conclusion, that the work of the U.S.-based engineers
is not like or directly competitive with that of the engineers
based abroad. Negative Determination on Second Remand, 77 Fed.
Reg. at 8285-87.
Thus, for example, Labor noted that “according to the
position descriptions [of the Malaysian job listings submitted
by the Plaintiffs], none of the vacant positions involved the
design or development of hard disk drives.” Negative
Determination on Second Remand, 77 Fed. Reg. at 8286.12 Rather,
“careful examination of the duties listed for each position
establishes that the work of these engineers relates to
12
See also id. at 8286-87 (“Close examination of the
listings showed that only one position called for ‘co-develop
new product and channel feature with U.S. counterpart.’ In any
event, the position description does not specify that the ‘co-
development’ refers to hard disk drives. None of the other
positions listed call for development work of hard disk drives
or any other products. Also, out of the 17 listings, only three
contain the words ‘develop’ or ‘design’ and these three
positions call for the development and design of software and
code applications, not hard disk drives, which the subject firm
has ascertained is the function of the domestic engineers.”)
(citations to the record omitted).
Court No. 11-00085 Page 14
manufacturing.” Id. at 8286 (providing examples and citing to
the record).
Plaintiffs also emphasize the record evidence that
“failure analysis” is performed by both domestic and foreign
engineers employed by the subject firm, arguing that this
evidence compels the conclusion that the foreign-based
engineering services are like or directly competitive with the
services provided by the domestic engineers. Pls.’ Br. at 12.
But the subject firm explained that the “failure analysis”
performed by the domestic engineers differs from the “failure
analysis” performed by the foreign-based engineers. SAR at 12.
Whereas the domestic engineers perform failure analysis at the
early prototype stages of product development, the foreign-based
engineers perform such analysis at the later stages of mass
production, prior to market release. Id.; see Negative
Determination on Second Remand, 77 Fed. Reg. at 8287 (addressing
Plaintiffs’ “failure analysis”-based argument and citing to the
record). Accordingly, the record reasonably supports Labor’s
conclusion that the services provided by the subject firm’s
foreign-based engineers were not like or directly competitive
with those provided by the firm’s domestic engineers, including
Court No. 11-00085 Page 15
Plaintiffs,13 notwithstanding the evidence that both groups
perform some type of “failure analysis.” See Negative
Determination on Second Remand, 77 Fed. Reg. at 8287; SAR at 12.
Plaintiffs suggest that the court should order Labor
to conduct a more thorough investigation. Pls.’ Br. at 15-22.
But while Plaintiffs appropriately emphasize Labor’s affirmative
obligation to investigate TAA claims “with the utmost regard for
the interests of the petitioning workers,”14 the agency’s
authority to act in the workers’ interests is cabined by the
statutory conditions for TAA eligibility. See 19 U.S.C.
§ 2272(a).15 Here, Labor has marshaled the relevant facts16 and
13
The court thus needs not, and so does not, address
Labor’s alternative conclusion that, to the extent that the
record could be read to suggest a relevant shift abroad of
production, the shift was negligible, and therefore could not
serve as a basis for TAA eligibility. See Negative Determination
on Second Remand, 77 Fed. Reg. at 8287.
14
Pls.’ Br. at 15 (quoting Former Emps. of Invista,
S.a.r.l. v. U.S. Sec’y of Labor, __ CIT __, 714 F. Supp. 2d
1320, 1336 (2010)); see Former Emps. of Invista, __ CIT at __,
714 F. Supp. 2d at 1329 (collecting cases).
15
See also Former Emps. of Invista, __ CIT at __, 714 F.
Supp. 2d at 1336 n.22 (citing United Glass & Ceramic Workers v.
Marshall, 584 F.2d 398, 400 (D.C. Cir. 1978) (quoting
legislative history explaining that job losses are not covered
by TAA if they “would have occurred regardless of the level of
imports, e.g., those resulting from domestic competition,
seasonal, cyclical, or technological factors”)).
16
See 29 C.F.R. § 90.12 (2009) (“In the course of any [TAA]
investigation, representatives of [Labor] shall be authorized to
contact and meet with responsible officials of firms, union
(footnote continued)
Court No. 11-00085 Page 16
interpreted the evidence to conclude that the statutory
conditions for TAA eligibility have not been met. Labor has
addressed each of Plaintiffs’ claims with specific references to
the record, and Plaintiffs’ contention that more evidence is
required is essentially a disagreement with the agency regarding
the conclusions drawn from the record.17 As discussed above, the
officials, employees, and any other persons, or organizations,
both private and public, as may be necessary to marshal all
relevant facts to make a determination on the petition.”).
17
Plaintiffs contend, for example, that the record of
Labor’s investigations is deficient because Labor’s conclusion
that Plaintiffs’ worker group did not provide the same services
as those performed by engineers in Asia was based on a sample of
services that “did not include the full range of engineering
services provided by the HDD group in the United States and in
Asia.” Pls.’ Br. at 17. But the record reveals that, “although
the [employees in the worker group represented by the
Plaintiffs] ha[d] different functions and belong[ed] to
separately identifiable worker groups, [each of these] workers
suppl[ied] services that [were] vertically integrated in the
production of hard disk drives . . . .” SAR at 29. Thus the
record reveals that Labor has already considered the various
subgroups within the larger worker group and determined that
this evidence is consistent with Labor’s analysis of this case.
Plaintiffs also contend that the record remains incomplete
because it lacks evidence regarding prototype production in the
United States and Asia. Pls.’ Br. at 18-20. But the record does
contain information in this regard. See SAR at 23 ([[
]]), 38-39 (providing
Labor’s analysis of this information). In any event, the record
reasonably supports the conclusion that the firm’s domestic
prototype production significantly differs from the firm’s
prototype production abroad. See id. at 22 ([[“
”]]).
(footnote continued)
Court No. 11-00085 Page 17
record of Labor’s investigations contains sufficient evidence
for a reasonable mind to conclude, as the agency did, that
neither an increase in imports nor a shift abroad of production
or services contributed importantly to the separation of
Plaintiffs’ worker group from the subject firm. Moreover, also
as discussed, the record as a whole is reasonably consistent
with this conclusion.18 Accordingly, Labor’s determination that
Plaintiffs’ separation from the subject firm was due neither to
an increase in imports nor to a shift abroad of production or
services is supported by substantial evidence. See 19 U.S.C.
§ 2395(b).
Finally, Plaintiffs contend that the record is incomplete
because “[i]t is unclear from the record whether engineering
services were formerly provided by the [worker] group
[represented by the Plaintiffs] in support of wafer production
or domestic production of other components[,] [and] the record
[does not] contain information to determine whether such
functions were shifted to engineers in Asia.” Pls.’ Br. at 20-
21. But the existing record already sufficiently supports the
conclusion that Plaintiffs’ worker group was not involved in the
domestic production of wafers or other components, because such
components are designed by a separate group of engineers at a
different facility. SAR at 21.
18
Compare with Former Emps. of Invista, __ CIT at __,
714 F. Supp. 2d at 1329 (relied on in Pls.’ Br. at 15-16)
(“[T]he administrative record in this case was replete with
evidence supporting the Workers’ claim that their terminations
were attributable to . . . the 2004 shift of . . . production to
Mexico; and, moreover, . . . the evidence to the contrary
(including, in particular, the statement [relied on by the
agency]) was not only scant, but also weak.” (internal quotation
marks and citation omitted)) (awarding the plaintiffs attorneys’
fees and expenses, pursuant to the Equal Access to Justice Act).
Court No. 11-00085 Page 18
CONCLUSION
For the reasons stated above, Labor’s Negative
Determination on Second Remand, 77 Fed. Reg. at 8287, is
affirmed. Judgment will be entered accordingly.
_____/s/ Donald C. Pogue____
Donald C. Pogue, Chief Judge
Dated: December 21, 2012
New York, NY