Former Employees of Invista v. U.S. Sec'Y of Labor

• Decision Date: 09 October 2009
• Docket Number: Slip Op. 09-113. Court No. 07-00160.
• Citation: 657 F.Supp.2d 1359
• Parties: FORMER EMPLOYEES OF INVISTA, S.A.R.L., Plaintiffs, v. U.S. SECRETARY OF LABOR, Defendant.
• Court: U.S. Court of International Trade

657 F.Supp.2d 1359

FORMER EMPLOYEES OF INVISTA, S.A.R.L., Plaintiffs, v. U.S. SECRETARY OF LABOR, Defendant.

Slip Op. 09-113. Court No. 07-00160.

United States Court of International Trade.

October 9, 2009.

Ruskin Moscou Faltischek, P.C. (Thomas A. Telesca), Uniondale, NY, for Plaintiffs.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Carrie A. Dunsmore); Stephen R. Jones, Office of the Solicitor, U.S. Department of Labor, Of Counsel; for Defendant.

MEMORANDUM OPINION

RIDGWAY, Judge.

In this action, former employees of the Chattanooga, Tennessee plant operated by Invista, S.a.r.l. ("the Workers") contest the determinations of the U.S. Department of Labor denying their petition for certification of eligibility for trade adjustment assistance ("TAA") and alternative trade adjustment assistance ("ATAA"). The determinations at issue include the Labor Department's original denial of the Workers' petition, as well as the agency's denial of the Workers' request for reconsideration, and the agency's negative determination following a voluntary remand. See 72 Fed.Reg. 7907, 7909 (Feb. 21, 2007) (notice of denial of petition); 72 Fed.Reg. 15,169 (March 30, 2007) (notice of denial of request for reconsideration); 73 Fed.Reg. 32,739 (June 10, 2008) (notice of negative determination on voluntary remand).

Invista I reviewed the Workers' challenge to the Labor Department's negative determination in the voluntary remand proceeding, and remanded this matter to the agency for a second time. See Former Employees of Invista, S.A.R.I. v. U.S. Sec'y of Labor, 33 CIT ___, 626 F.Supp.2d 1301 (2009) ("Invista I"). Now pending before the Court is the Labor Department's Notice of Revised Determination on Remand, together with the supporting Supplemental Administrative Record. See Notice of Revised Determination on Remand, 74 Fed.Reg. 51,195 (Oct. 5, 2009) ("Second Remand Determination"); Supplemental Administrative Record ("Second Supplemental Administrative Record").¹ Reversing its earlier rulings the Labor Department's latest determination grants the Workers' Petition, certifying them as eligible to apply for both TAA and ATAA. See 74 Fed.Reg. at 51,196.

Jurisdiction lies under 28 U.S.C. § 1581(d)(1).² As discussed below, the Labor Department's Second Remand Determination, certifying the Workers as eligible to apply for TAA and ATAA, is sustained.

I. Background

This should have been a relatively easy case for the Labor Department. The agency previously certified former Invista employees who did the same jobs at the same plant as the Workers at issue here. It nevertheless took four bites at the apple for the agency to get it right.

As detailed in Invista I (familiarity with which is presumed), the plaintiff Workers in this case are former employees of the Nylon Apparel Filament Fibers Group at Invista's Chattanooga, Tennessee plant. At the time of their termination on January 31, 2007, they processed orders for apparel fiber in support of apparel fiber production at an Invista plant in Mexico. Apparel fiber had previously been manufactured at the Chattanooga plant, until domestic production ceased and all such production was shifted to the Mexico facility in 2004. See generally Invista I, 33 CIT at ___, 626 F.Supp.2d at 1305.

The 2004 shift in production to Mexico led to widespread layoffs of production workers and support personnel at the Chattanooga plant. Invista management filed a petition for TAA and ATAA benefits on behalf of the terminated workers, which the Labor Department granted. Specifically, the Labor Department's 2004 certification certified as eligible for TAA and ATAA all Invista workers "engaged in employment related to the production of," inter alia, apparel fiber "who became totally or partially separated from employment on or after June 7, 2003, through two years from the date of certification [i.e., two years from August 20, 2004]." See generally Invista I, 33 CIT at ___, 626 F.Supp.2d at 1305-06 (quoting 69 Fed. Reg. 54,320, 54,321 (Sept. 8, 2004); additional citations omitted) (emphasis added). The Workers at issue here survived the 2004 layoffs, and continued their work at the Chattanooga site in support of apparel fiber production, even after that production shifted to Mexico. However, on November 14, 2006 — a mere three months after the 2004 TAA/ATAA certification expired — the Workers were notified that they were being terminated effective January 31, 2007. See generally id., 33 CIT at ___, 626 F.Supp.2d at 1306.

In mid-December 2006, Invista's Plant Manager filed the TAA/ATAA petition at issue here, on behalf of the Workers. In the TAA/ATAA Petition, the Plant Manager attested that the Workers' terminations were "a continuation of the shift in production to Mexico as described in [the 2004 TAA/ATAA certification] that expired August 20, 2006." See Invista I, 33 CIT at ___, 626 F.Supp.2d at 1306 (quoting TAA/ ATAA Petition). The Plant Manager further explained that — notwithstanding the 2004 shift in production to Mexico — "all orders [for apparel fiber had] continued to be processed from the United States" up to that time, but that such work was now going to be transferred to "CSR's [i.e., Customer Service Representatives] located in South America." See id., 33 CIT at ___, 626 F.Supp.2d at 1306 (citation omitted). The TAA/ATAA Petition also noted that two of the subject Workers were age 50 or older, that their skills "are not easily transferable," and that "[c]ompetitive conditions within the industry are adverse." See id., 33 CIT at ___, 626 F.Supp.2d at 1306 (citation omitted).

The Labor Department denied the Workers' TAA/ATAA Petition. See generally Invista I, 33 CIT at ___, 626 F.Supp.2d at 1306 (citing 72 Fed.Reg. at 7909 (denying TAA/ATAA Petition on grounds that "[t]he workers' firm does not produce an article as required for certification")). The Labor Department found that "domestic production of an article within ... [Invista's] Nylon Apparel Filament Fibers Group [had] ceased more than one year [before]," and that the petitioning Workers thus "were not in support of domestic production within the requisite one year period." Id., 33 CIT at ___, 626 F.Supp.2d at 1306 (citation omitted). The Labor Department therefore concluded that the Workers could not be "considered import impacted or affected by a shift in production of an article"; and, because the agency determined that the Workers were not eligible for TAA, the Workers' petition for ATAA was also denied. Id., 33 CIT at ___, 626 F.Supp.2d at 1306 (citation omitted).

The Workers requested that the Labor Department reconsider its determination, underscoring that they had "missed the opportunity of receiving ... [TAA and ATAA] benefits by less than 3 months," and emphasizing that they would have been covered by the 2004 TAA/ATAA certification — and thus "would have been able to have the opportunity of receiving the benefits of ... TAA [and ATAA]" — if only Invista management had notified them of their impending terminations "in August, versus November of 2006." See Invista I, 33 CIT at ___, 626 F.Supp.2d at 1306-07 (quoting Request for Reconsideration). Echoing a point made by Invista's Chattanooga Plant Manager in the TAA/ATAA Petition, the Request for Reconsideration stated that the Workers' layoffs in effect were the culmination of the 2004 shift in production of apparel fiber to Mexico — the "direct result of the ... apparel machines going to Mexico, the loss of textile manufacturing in the U.S. the bigger picture." Id., 33 CIT at ___, 626 F.Supp.2d at 1307 (citations omitted).

With no further investigation, the Labor Department denied the Workers' Request for Reconsideration. See 72 Fed.Reg. at 15,169. The Labor Department acknowledged the Workers' claim that their terminations were "a direct result of the same shift in production to Mexico ... which resulted in workers certification for TAA in 2004." See Invista I, 33 CIT at ___, 626 F.Supp.2d at 1307 (citations omitted). However, the Labor Department stated that, pursuant to agency regulations, it only "considers production that occurred one year prior to the date of the petition." See id., 33 CIT at ___, 626 F.Supp.2d at 1307 (citation omitted). The Labor Department therefore concluded that — because the Chattanooga plant ceased production of apparel fiber in 2004 — the Workers' TAA/ATAA Petition was "outside of the relevant period." See id., 33 CIT at ___, 626 F.Supp.2d at 1307 (citation omitted).

This action followed. The Workers filed a Motion For Judgment Upon the Agency Record, arguing, inter alia, that the Labor Department had denied the Workers' TAA/ATAA Petition based on the agency's determination that the Workers "were not in support of domestic production within the requisite one year period," but that the agency had failed to identify the authority for the asserted one-year limitation. See Invista I, 33 CIT at ___, 626 F.Supp.2d at 1307 (citations omitted). In addition, the Workers faulted the Labor Department for "fail[ing] to adequately consider the relevancy of the prior [TAA/ATAA] certification." See id., 33 CIT at ___, 626 F.Supp.2d at 1307 (citation omitted). Conceding that, by its terms, the one-year limitation in 29 C.F.R. § 90.2 appears to apply only in cases where layoffs result from "increased imports," the Government sought — and was granted — a voluntary remand to permit the Labor Department to determine whether the one — year time bar also applies in "shift of production" cases such as this. See id., 33 CIT at ___, 626 F.Supp.2d at 1307 (citations omitted).

In its Negative Determination on Remand (the determination at issue in Invista I), the Labor Department abandoned its reliance on the one-year time limitation in 29 C.F.R. § 90.2. Instead, the Labor Department based its negative determination on...