S.A.R.L. v. U.S. Sec'y Of Labor

• Decision Date: 28 June 2010
• Docket Number: Court No. 07-00160.,Slip Op. 10-73.
• Citation: 714 F.Supp.2d 1320
• Parties: FORMER EMPLOYEES OF INVISTA, S.A.R.L., Plaintiffs, v. U.S. SECRETARY OF LABOR, Defendant.
• Court: U.S. Court of International Trade

714 F.Supp.2d 1320

FORMER EMPLOYEES OF INVISTA, S.A.R.L., Plaintiffs,

v.U.S. SECRETARY OF LABOR, Defendant.

Slip Op. 10-73.

Court No. 07-00160.

United States Court ofInternational Trade.

June 28, 2010.

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

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice.

OPINION

RIDGWAY, Judge:

In this action, former employees of the Chattanooga, Tennessee plant operated by Invista, S.a.r.l. (“the Workers”) contested 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 included 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, or “Remand Determination”).

Invista I reviewed the Workers' challenge to the Labor Department's negative Remand Determination ( i.e., the 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.l. v. U.S. Sec'y of Labor, 33 CIT ----, 626 F.Supp.2d 1301 (2009) (“ Invista I”). As a result of the investigation in the course of the second remand, the Labor Department granted the Workers' Petition, amending the agency's 2004 TAA/ATAA certification of Invista workers to cover the Workers at issue here. 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”). That determination was sustained in Invista II. See Former Employees of Invista, S.a.r.l. v. U.S. Sec'y of Labor, 33 CIT ----, 657 F.Supp.2d 1359 (2009) (“ Invista II”). ¹ Now pending before the Court is Plaintiffs' Application for Fees and Other Expenses Pursuant to the Equal Access to Justice Act, seeking an award in the sum of $13,463.20, ² which the Government opposes. See Plaintiffs' Memorandum of Law in Support of Equal Access to Justice Act Application (“Pls.' EAJA Application”); Defendant's Response to Plaintiffs' Application for Attorney Fees and Expenses (“Def.'s Response”).

For the reasons set forth below, Plaintiffs' Application for Fees and Other Expenses must be granted.

I. Background

As Invista II noted, “[t]his 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.” See Invista II, 33 CIT at ----, 657 F.Supp.2d at 1361 ( citing Invista I, 33 CIT at ----, 626 F.Supp.2d at 1305). The only significant issue which the Labor Department had to resolve in this case was whether the termination of these Workers was “attributable to the basis for [the 2004 TAA/ATAA] certification”-that is, whether the termination of these Workers was “attributable to” the 2004 shift of production to Mexico. ³ See, e.g., Weirton Steel Corporation, Weirton, WV: Negative Determination on Remand, 73 Fed.Reg. 52,066, 52,068 (Sept. 8, 2008) (“Weirton Steel”) (articulating standard for amendment of TAA/ATAA certification to extend period of coverage to include worker separations occurring after expiration date of original TAA/ATAA certification). ⁴ The Labor Department nevertheless required “four bites at the apple” to conduct the thorough investigation mandated by statute, delaying for more than two and a half years the Workers' certification for the TAA/ATAA benefits to which the Labor Department ultimately determined they are entitled. See Invista II, 33 CIT at ----, ----, 657 F.Supp.2d at 1361, 1364-65 (citations omitted).

As detailed in Invista I and Invista II, 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 a facility in Mexico in 2004. Since the 2004 shift of production, only nylon performance filament fiber (“performance fiber”) has been produced at the Chattanooga plant. See generally Invista I, 33 CIT at ----, 626 F.Supp.2d at 1305; Invista II, 33 CIT at ----, 657 F.Supp.2d at 1361.

The 2004 shift of production to Mexico led to widespread layoffs of production workers and support personnel at the Chattanooga plant. At that time, 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)) (emphasis added); Invista II, 33 CIT at ----, 657 F.Supp.2d at 1361.

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 Labor Department's 2004 TAA/ATAA certification expired-the Workers were notified that they were being terminated effective January 31, 2007. See generally Invista I, 33 CIT at ----, 626 F.Supp.2d at 1306; Invista II, 33 CIT at ----, 657 F.Supp.2d at 1361.

Shortly thereafter, Invista's Chattanooga Plant Manager filed the TAA/ATAA petition at issue here, on behalf of the Workers. In the TAA/ATAA Petition, Invista's Plant Manager attested, under oath, 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 A.R. 2; Invista I, 33 CIT at ----, 626 F.Supp.2d at 1306; Invista II, 33 CIT at ----, 657 F.Supp.2d at 1362. The Plant Manager further explained that-notwithstanding the 2004 shift of production to Mexico-“all orders [for apparel fiber had] continued to be processed from the United States” up to the time of the filing of the 2006 TAA/ATAA Petition, but that, for the future, all such work was being transferred to “CSR's [ i.e., Customer Service Representatives] located in South America.” See A.R. 2; Invista I, 33 CIT at ----, 626 F.Supp.2d at 1306 (citation omitted); Invista II, 33 CIT at ----, 657 F.Supp.2d at 1362. The TAA/ATAA Petition also noted that several of the subject Workers were age 50 or older, that their skills were “not easily transferable,” and that “[c]ompetitive conditions within the industry are adverse.” See A.R. 2; Invista I, 33 CIT at ----, 626 F.Supp.2d at 1306; Invista II, 33 CIT at ----, 657 F.Supp.2d at 1362.

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”)); Invista II, 33 CIT at ----, 657 F.Supp.2d at 1362. 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]” the Workers' termination, and that the petitioning Workers thus “were not in support of domestic production within the requisite one year period”-an allusion to 29 C.F.R. § 90.2, which concerns cases involving allegations of “increased imports” (not “shift of production” cases such as the case at bar). See A.R. 31 (emphasis added); 29 C.F.R. § 90.2 (2006) ⁵ ; Invista I, 33 CIT at ----, 626 F.Supp.2d at 1306; Invista II, 33 CIT at ----, 657 F.Supp.2d at 1362. 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. See A.R. 31-32; Invista I, 33 CIT at ----, 626 F.Supp.2d at 1306; Invista II, 33 CIT at ----, 657 F.Supp.2d at 1362. At no time in the course of its initial investigation did the Labor Department consider amending the 2004 TAA/ATAA certification to extend the period of coverage to include the Workers at issue here.

The Workers requested that the Labor Department reconsider its denial of their TAA/ATAA Petition, 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 eligible for TAA/ATAA benefits-if only Invista management had notified the Workers of their impending terminations “in August, versus November of 2006.” See A.R. 35-38; Invista I, 33 CIT at ----, 626 F.Supp.2d at 1306-07; Invista II, 33 CIT at ----, 657 F.Supp.2d at 1362. Significantly, echoing a point made by Invista's Chattanooga Plant Manager in the TAA/ATAA Petition, the Workers' Request for...