United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, Local 2911 v. United States Secretary of Labor

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