Former Employees of Tesco Technologies, LLC v. United States Secretary of Labor

                                         Slip Op. 07-32

               UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
                                     :
FORMER EMPLOYEES OF TESCO            :
TECHNOLOGIES, LLC,                   :
                                     :
            Plaintiffs,              :
                                     :  Before: Judith M. Barzilay, Judge
      v.                             :  Court No. 05-00264
                                     :
UNITED STATES SECRETARY OF           :
LABOR,                               :
                                     :
            Defendant.               :
____________________________________:

                                     JUDGMENT ORDER

[Department of Labor’s Notice of Revised Determination on Second Remand sustained.]

                                                     Dated: March 7, 2007

(Gary G. Mosey), Pro Se, for Plaintiffs Former Employees of Tesco Technologies, LLC.

Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson, Director; (Patricia M.
McCarthy), Assistant Director; (Dawn S. Conrad), Commercial Litigation Branch, Civil
Division, United States Department of Justice; Clarette H. Yen, Office of the Solicitor, United
States Department of Labor, of counsel, for Defendant United States Secretary of Labor.

                                         I. Introduction

       Plaintiffs, Former Employees of Tesco Technologies, LLC, brought suit to challenge the

United States Secretary of Labor’s (“Labor” or “Department”) denial of Plaintiffs’ certification of

eligibility to apply for Trade Adjustment Assistance (“TAA”). See Tesco Technologies, LLC,

Headquarters Office, Auburn Hills, Michigan; Notice of Negative Determination on Remand, 70

Fed. Reg. 45,438-01 (Dep’t Labor Aug. 5, 2005); Tesco Technologies, LLC, Headquarters

Office, Auburn Hills, MI; Notice of Negative Determination on Reconsideration, 70 Fed. Reg.
Court No. 05-00264                                                                    Page 2

3228-01 (Dep’t Labor Jan. 21, 2005). Following this court’s remand of the determination results

to Labor in Former Employees of Tesco Technologies, LLC v. U.S. Secretary of Labor, 30 CIT

__, 2006 WL 3419786 (Nov. 9, 2006) (not in F. Supp.) (“FEO Tesco I”),1 the Department

“clarified its policy to acknowledge that, under certain circumstances, there may be articles

which are like or directly competitive to a ‘unique’ article,” such as those that Plaintiffs

produced. Tesco Technologies, LLC, Headquarters Office, Auburn Hills, MI; Notice of Revised

Determination on Second Remand, 72 Fed. Reg. 5749-01, 5750 (Dep’t Labor Feb. 7, 2007)

(“Remand Results”). The Secretary of Labor then certified Plaintiffs as eligible to apply for TAA

assistance. See id. We sustain Labor’s determination.

                                      II. Standard of Review

       This Court has exclusive jurisdiction over civil actions arising from Labor’s

determinations “with respect to the eligibility of workers for adjustment assistance.” 28 U.S.C.

§ 1581(d)(1) (2004). It will uphold Labor’s denial of TAA eligibility certification only if the

determination is supported by substantial evidence and otherwise in accordance with law. See 19

U.S.C. § 2395(b) (2004). As the relevant statutes do not provide guidance as to the standard of

review for Labor's legal determinations, see Former Employees of Murray Eng'g, Inc. v. Chao,

28 CIT __, __, 346 F. Supp. 2d 1279, 1282 (2004), this Court, therefore, considers whether

Labor's determination is “in accordance with law,” a default standard outlined in the

Administrative Procedure Act. 5 U.S.C. § 706(2)(A) (2004); see Former Employees of Elec.

Data Sys. Corp. v. U.S. Sec’y of Labor, 28 CIT __, __, 350 F. Supp. 2d 1282, 1286 (2004); see

also Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 496–97 (2004) (“Because the


       1
           Familiarity with the procedural history of FEO Tesco I is presumed.
Court No. 05-00264                                                                    Page 3

[relevant] Act itself does not specify a standard of judicial review in this instance, we apply the

familiar default standard of the Administrative Procedure Act . . . .”) (footnote omitted). The

court also must consider whether Labor’s legal conclusions are reached through “a showing of

reasoned analysis” by the agency. Former Employees of Ericsson, Inc. v. U.S. Sec’y of Labor, 28

CIT __, __, 2004 WL 2491651, at *2 (2004) (not reported in F. Supp.) (quoting Former

Employees of Rohm & Haas Co. v. Chao, 27 CIT 116, 122, 246 F. Supp. 2d 1339, 1346 (2003)

(quoting Int’l Union v. Marshall, 584 F.2d 390, 396 n.26 (D.C. Cir. 1978))) (quotations omitted).

Where Labor’s analysis has “a rational basis in law,” the court must sustain its interpretation

“even though the court might have reached a different interpretation.” Abbott v. Donovan, 6 CIT

92, 100, 570 F. Supp. 41, 49 (1983).

                                          III. Discussion

       In the Remand Results, Labor determined that “a shift in production abroad of articles like

or directly competitive to that [sic] produced at the subject facilities [Tesco Technologies, LLC]

followed by increased imports of such articles contributed to the total or partial separation of a

significant number or proportion of workers [Plaintiffs] at the subject facility.” Remand Results,

72 Fed. Reg. at 5750. Based on this reasoning, the Department certified Plaintiffs as eligible to

apply for TAA benefits. Id. Plaintiff filed no response. In light of this case’s record, and

because Labor’s analysis of the facts comports with 19 U.S.C. § 2272(a) (2004),2 the court finds




       2
        19 U.S.C. § 2272 establishes the criteria an agency must consider to determine whether a
group of workers qualifies for TAA eligibility certification.
Court No. 05-00264                                                                 Page 4

that Labor’s determination is supported by substantial evidence and in accordance with law. The

court therefore holds that the remand results are SUSTAINED.



       March 7, 2007                                      /s/ Judith M. Barzilay

Dated:________________________                            __________________________

       New York, NY                                               Judge