Former Emp. of Tyco v. U.S. Dept. of Labor

• Decision Date: 12 May 2003
• Docket Number: SLIP OP. 03-49.,Court No. 02-00152.
• Citation: 264 F.Supp.2d 1322
• Parties: FORMER EMPLOYEES OF TYCO ELECTRONICS, FIBER OPTICS DIVISION, Plaintiffs, v. UNITED STATES DEPARTMENT OF LABOR, Defendant.
• Court: U.S. Court of International Trade

264 F.Supp.2d 1322

FORMER EMPLOYEES OF TYCO ELECTRONICS, FIBER OPTICS DIVISION, Plaintiffs, v. UNITED STATES DEPARTMENT OF LABOR, Defendant.

SLIP OP. 03-49.

Court No. 02-00152.

United States Court of International Trade.

May 12, 2003.

Williams Mullen, Washington, DC (Jimmie V. Reyna, Francisco J. Orellana), for Plaintiffs.

Robert D. McCallum, Jr., Assistant Attorney General, David M. Cohen, Director, Lucius B. Lau, Assistant Director, John N. Maher, Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Jay Reddy, Office of the Solicitor, U.S. Department of Labor, for Defendant, of counsel.

OPINION

CARMAN, Chief Judge.

This matter comes before the Court on Plaintiffs' Motion for Judgment Upon the Agency Record pursuant to USCIT Rule 56.1. This Court has jurisdiction pursuant to 28 U.S.C. § 1581(d) (2000). Plaintiffs challenge the United States Department of Labor's ("Labor") determination entitled Notice of Negative Determination On Reconsideration on Remand ("Remand Results"). (Pub. Supplemental Admin. R. at 15-18); see also Tyco Electronics, Fiber Optics Division; Glen Rock, PA; Notice of Negative Determination on Reconsideration on Remand, 68 Fed.Reg. 5,655 (Feb. 4, 2003). As set forth below, this Court holds that the Remand Results are not supported by substantial evidence or otherwise in accordance with law. Therefore, this matter is remanded to Labor for further investigation consistent with the specific instructions contained herein.

STANDARD OF REVIEW

This Court will uphold Labor's determination of eligibility for trade adjustment assistance "if it is supported by substantial evidence on the record and is otherwise in accordance with law." Former Employees of Swiss Indus. Abrasives v. United States, 830 F.Supp. 637, 639 (CIT 1993) (citations omitted); see also 19 U.S.C. § 2395(b). Pursuant to 19 U.S.C. § 2395(b),

The findings of fact by the Secretary of Labor ..., if supported by substantial evidence, shall be conclusive; but the court, for good cause shown, may remand the case to such Secretary to take further evidence, and such Secretary may thereupon make new or modified findings of fact and may modify his previous action, and shall certify to the court the record of the further proceedings. Such new or modified findings of fact shall likewise be conclusive if supported by substantial evidence.

19 U.S.C. § 2395(b) (2000). "Substantial evidence is something more than a `mere scintilla,' and must be enough reasonably to support a conclusion." Ceramica Regiomontana, S.A v. United States, 636 F.Supp. 961, 966 (CIT 1986), aff'd, 810 F.2d 1137 (Fed.Cir.1987); see also Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). Further, Labor's findings of fact must be supported by reasonable analysis and not be arbitrary and capricious. Former Employees of Marathon Ashland v. Chao, 215 F.Supp.2d 1345, 1350 (CIT 2002) (citation omitted).

Although "the nature and extent of the investigation are matters resting properly within the sound discretion of [Labor]," Former Employees of CSX Oil & Gas Corp. v. United States, 720 F.Supp. 1002, 1008 (CIT 1989) (quoting Cherlin v. Donovan, 585 F.Supp. 644, 647 (CIT 1984)), "good cause to remand exists if [Labor's] chosen methodology is so marred that [the] finding is arbitrary or of such a nature that it could not be based on substantial evidence." Former Employees of Galey & Lord Indus, v. Chao, 219 F.Supp.2d 1283, 1286 (CIT 2002) (citations omitted). Under § 2395(c), this Court "shall have jurisdiction to affirm the action of the Secretary of Labor ... or to set such action aside, in whole or in part." 19 U.S.C. § 2395(c).

BACKGROUND

Plaintiffs, the former employees of the Tyco Electronics Plant, Fiber Optics Division located in Glen Rock, Pennsylvania ("Former Employees"), sought certification for North American Free Trade Transitional Adjustment Assistance ("NAFTTAA") benefits on July 27, 2001. (Pub. Admin. R. at 2.) Former Employees sought certification under 19 U.S.C. § 2331.¹ Section 2331(a)(1) provides:

A group of workers ... shall be certified as eligible to apply for adjustment assistance under this subchapter ... if [Labor] determines that 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 either —

(A) that —

(i) the sales or production, or both, of such firm or subdivision have decreased absolutely,

(ii) imports from Mexico or Canada of articles like or directly competitive with articles produced by such firm or subdivision have increased, and

(iii) the increase in imports under 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) that there has been a shift in production by such workers' firm or subdivision to Mexico or Canada of articles like or directly competitive with articles which are produced by the firm or subdivision.

19 U.S.C. § 2331(a)(1) (2000).

Plaintiffs sought certification for benefits based on their belief that their job loss was a result of an increase in imports from Mexico and a result of a shift in production of fiber optic components to Mexico. (Pub. Admin. R. at 53.) According to the Former Employees, several other Tyco facilities in the Pennsylvania area had closed and all recent petitions for NAFTA-TAA had been granted. (Id. at 51.) The Pennsylvania Department of Labor and Industry initiated a preliminary investigation and denied the Former Employees' petition based on insufficient import information regarding like products and Tyco Electronic's initial survey response. (Conf. Admin. R. at 12-14.) The United States Department of Labor initiated an investigation of the Former Employee's NAFTA-TAA certification eligibility petition on September 4, 2001. Investigations Regarding Certifications of Eligibility to Apply for NAFTA Transitional Adjustment Assistance, 66 Fed.Reg. 48,708 (Sept. 21, 2001).

In the initial investigation, Labor denied the Former Employees' NAFTA-TAA petition on the grounds that imports from Mexico did not contribute importantly to the Former Employees' separation and there was no shift in production to Mexico. Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment Assistance and NAFTA Transitional Adjustment Assistance, 66 Fed.Reg. 53,250, 53,252 (Oct. 19, 2001). The initial investigation consisted of one form letter data request sent to Tyco Electronics. (Conf. Admin. R. at 33-34.) In its written determination, Labor found that the predominant cause of the work separation was related to a shift in production to an affiliated Tyco Electronics facility in Harrisburg, Pennsylvania. (Pub. Admin. R. at 19.)

On October 9, 2001, Former Employees filed a motion for administrative reconsideration of Labor's negative NAFTA-TAA determination, contending that their job separation was caused by a shift in production to Mexico. (Id. at 54.) Based upon additional information provided during a conference call with Tyco Electronics company officials, Labor denied Former Employees' request for administrative reconsideration. Tyco Electronics Fiber Optics Division, Glen Rock, Pennsylvania; Notice of Negative Determination Regarding Application for Reconsideration, 67 Fed. Reg. 5,299 (Feb. 5, 2002). Labor stated that only "a negligible portion of the plant production was shifted to Mexico during the relevant period." (Pub. Admin. R. at 69.)

Appearing pro se, Former Employees appealed the negative determination by filing a complaint in this Court on January 30, 2002. (Pis.' Compl. at 1.) Plaintiffs' counsel was appointed by the Court to represent the Former Employees pro bono. Pursuant to the Court's scheduling order, Plaintiffs filed a Rule 56.1 Motion for Judgment Upon the Agency Record on June 28, 2002. Immediately after the Former Employees filed their Rule 56.1 Motion, Defendants sought Plaintiffs' consent to a voluntary remand. In seeking a voluntary remand, Defendant stated that "[a]fter review of the administrative record in light of the arguments petitioners made in their Rule 56.1 motion, defendant seeks a remand to Labor to conduct a further investigation and make a redetermination." (Def.'s Unopposed Mot. for Voluntary Remand at 2.)

On August 7, 2002, this Court issued an order that Defendant conduct a remand investigation and submit remand results by October 7, 2002. Former Employees of Tyco Elecs. v. United States, No. 02-00152 (CIT Aug. 7, 2002) (order granting voluntary remand) ("Remand Order"). The Remand Order mandated that Labor "conduct further investigation, ... [and] collect further evidence, including evidence from the plaintiffs." Id. at 1. Labor failed to timely comply with the Court's order and did not submit a remand determination to this Court on or before October 7, 2002. On October 17, 2002, Plaintiffs submitted information to Defendant's counsel for use in the remand determination ("October 17 information"). (Pis.' Br. at 5; Def.'s Br. at 9.) On November 12, 2002, Plaintiffs contacted Defendant to inquire about the status of the remand investigation. Former Employees of Tyco Elecs. v. United States, 259 F.Supp.2d 1246, 1248 (CITrade March 5, 2003) (order granting Defendant leave to file out of time and awarding Plaintiffs attorney's fees). At that time, Defendant's counsel informed Plaintiffs' counsel that the remand investigation had not started. Id. On November 14, 2002, Defendant filed its first motion for leave to file the remand results out of time, requesting until January 6, 2003 to file the results. Id, On January 2, 2003, Defendant filed a second motion for leave to file the remand results out of time. Id, In its second motion, Labor requested until January 21, 2003 to file the results. Id. The Remand...