                          Slip. Op. 07 – 108

           UNITED STATES COURT OF INTERNATIONAL TRADE

________________________________
                                )
FORMER EMPLOYEES OF             ) Before: The Hon. Richard W.
INDEPENDENT STEEL CASTINGS      )         Goldberg, Senior Judge
COMPANY, INC.,                  )
                    Plaintiffs, ) Court No. 06-00338
                                )
     v.                         ) PUBLIC VERSION
                                )
UNITED STATES DEPARTMENT        )
OF LABOR,                       )
                    Defendant. )
________________________________)

                               OPINION

[Labor’s determination regarding ATAA eligibility is remanded.]

                                               Dated: July 10, 2007

Joyce Goldstein & Associates (Joyce Goldstein and Gina
Fraternali) for the Plaintiffs.

Peter D. Keisler, Assistant Attorney General; Jeanne E.
Davidson, Director; Patricia M. McCarthy, Assistant Director,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Tara J. Kilfoyle), for the Defendant.

GOLDBERG, Senior Judge:    Independent Steel Castings Company

(“ISCCO”), based in New Buffalo, Michigan, produced steel,

aluminum and bronze mold and cast products.    The plant closed on

May 27, 2005.   On March 2, 2006, thirty-nine former employees of

ISCCO (“Plaintiffs”) filed a petition with the U.S. Department

of Labor (“Labor”) for Trade Adjustment Assistance (“TAA”) and

Alternative TAA (“ATAA”), pursuant to 19 U.S.C. §§ 2271-2273,

2318.
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     On July 14, 2006, Labor certified Plaintiffs as eligible to

apply for TAA benefits but denied their eligibility to apply for

ATAA benefits, citing a failure to satisfy one of the ATAA group

eligibility criteria.   On July 17, 2006, Plaintiffs sent Labor a

request for reconsideration of Labor’s negative determination

with regard to ATAA group eligibility.   This request was also

denied.

     Plaintiffs filed a complaint with this Court on October 6,

2006, and subsequently filed a motion, pursuant to USCIT Rule

56.1, for judgment upon the agency record.   Plaintiffs seek the

reversal of Labor’s negative determination regarding ATAA

eligibility and Labor’s denial of the motion for

reconsideration.   They argue that Labor’s conclusions are not

supported by substantial evidence and ask the Court to order

Labor to certify Plaintiffs as eligible to apply for ATAA.    In

the alternative, Plaintiffs ask the Court to remand the case

back to Labor with instructions to conduct a more thorough

investigation.   In response, Labor argues that this Court lacks

authority to order Labor to certify Plaintiffs as eligible for

ATAA benefits, and, moreover, that there is substantial evidence

to support Labor’s conclusions.

     This Court has jurisdiction under 28 U.S.C. § 1581(d)(1).

Because this Court finds that Labor’s conclusions regarding

Plaintiffs’ ATAA group eligibility are not supported by
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substantial evidence, this action is remanded to Labor for

further proceedings consistent with this opinion.

                           I. BACKGROUND

A. Relevant Legal Framework

     TAA and ATAA are government programs designed to assist

workers who have become unemployed due to the effects of

international trade.   See Former Employees of Int’l Bus. Machs.

Corp. v. U.S. Sec’y of Labor, 29 CIT __, __, 403 F. Supp. 2d

1311, 1314 (2005).   The goal of these programs is to help trade-

affected workers quickly reenter the workforce.   See U.S. Gov.

Accounting Office, TAA: Reforms Have Accelerated Training

Enrollment, but Implementation Challenges Remain, GAO–04–1012,

Sept. 2004, at 25 (“GAO Report 04–1012”).   The ATAA program was

created specifically for older TAA-certified workers for whom

retraining may not be appropriate.   Former Employees of BMC

Software, Inc. v. U.S. Sec’y of Labor, 30 CIT __, __, 454 F.

Supp. 2d 1306, 1310 n.5 (2006).   It provides a wage subsidy for

such workers who quickly obtain reemployment at a lower wage

than what they previously earned.    See U.S. Gov. Accounting

Office, TAA: Most Workers in Five Layoffs Received Services, but

Better Outreach Needed on New Benefits, GAO–06–43, Jan. 2006, at

9.

     For an individual worker to receive benefits under ATAA,

(1) the worker group must be certified as ATAA-eligible, and (2)
Court No. 06-00338                                          Page      4


the worker must be individually certified as ATAA-eligible.     See

19 U.S.C. § 2318 (Supp. IV 2004).   Labor considers three

criteria to determine whether to grant group certification under

the ATAA.   See ATAA Program: Training and Employment Guidance

Letter Interpreting Federal Law (“Guidance Letter”), 69 Fed.

Reg. 60,904, 60,904-05 (Dep’t of Labor Oct. 13, 2004).   These

three criteria are:

     (I)    Whether a significant number of workers in the
            workers’ firm are 50 years of age or older.

     (II)   Whether the workers in the workers’ firm possess
            skills that are not easily transferable.

     (III) The competitive conditions within the workers’
           industry.

19 U.S.C. § 2318(a)(3)(A)(ii).   Then, to be individually

eligible for ATAA benefits, the worker must, inter alia, be at

least fifty years of age and obtain reemployment not more than

twenty-six weeks after the date of separation from the

adversely-affected employment.   Id. § 2318(a)(3)(B)(ii)–(iii).

B. Labor’s Investigation

     On July 14, 2006, Labor published its determinations in the

Federal Register certifying Plaintiffs as eligible to apply for

TAA benefits, but denying their eligibility to apply for ATAA

benefits.   Notice of Determinations Regarding Eligibility to

Apply for Worker Adjustment Assistance and Alternative Trade

Adjustment Assistance (“Notice of Determinations”), 71 Fed. Reg.
Court No. 06-00338                                        Page     5


40,156, 40,157 (Dep’t of Labor July 14, 2006).    The denial of

ATAA eligibility was based on Labor’s determination that one of

the ATAA criteria, whether the workers in the workers’ firm

possess skills that are not easily transferable, had not been

satisfied.   Id.   On July 17, 2006, Plaintiffs sent Labor a

request for administrative reconsideration of Labor’s negative

determination, pursuant to 29 C.F.R. § 90.18(c).   In support of

their request for reconsideration, and in an attempt to provide

Labor with “facts not previously considered,” id., Plaintiffs

submitted assorted statistics showing unemployment rates in New

Buffalo and the surrounding parts of Michigan.    On July 31,

2006, Labor sent Plaintiffs a letter denying their application

for administrative reconsideration.   In that letter, Labor

bolstered its determination that the Plaintiffs possess skills

that are easily transferable by divulging that during Labor’s

initial investigation, an ISCCO company official had revealed

that each of the separated workers in question had been offered

positions at another foundry in the area.   Pls.’ Mot. App. A 99

(Letter from Linda G. Poole, Certifying Officer, Department of

Labor, Division of Trade Adjustment Assistance, to Thomas C.

Carey, Associate General Counsel, International Union, United

Automobile, Aerospace and Agriculture Implement Workers of

America (July 31, 2006)) (“Letter from Labor”).
Court No. 06-00338                                          Page    6


       The confidential administrative record later revealed that

[ ].   Labor issued its negative determination with regard to the

Plaintiffs’ ATAA eligibility.

                       II. STANDARD OF REVIEW

       Based on the record, Labor’s findings of fact are

conclusive if supported by substantial evidence.   See 19 U.S.C.

§ 2395(b) (Supp. IV 2004).    Under the substantial evidence

standard, the court is “not free to substitute its judgment for

that of the agency . . . .”   Int’l Bus. Machs., 29 CIT at __,

403 F. Supp. 2d at 1324.   On the other hand, substantial

evidence is more than a “mere scintilla,” e.g., Former Employees

of Chevron Prods. Co. v. U.S. Sec’y of Labor, 27 CIT 1135, 1143,

279 F. Supp. 2d 1342, 1349 (2003) (quotation marks omitted), and

“must do more than create a suspicion of the existence of the

fact to be established . . . .”   SSIH Equip. S.A. v. U.S. Int’l

Trade Comm’n, 718 F.2d 365, 382 (Fed. Cir. 1983) (quotation

marks omitted).   Furthermore, all rulings based on the agency’s

findings of fact must not be arbitrary and capricious, but

rather the result of reasoned analysis.   See Former Employees of

Gen. Elec. Corp. v. U.S. Dep’t of Labor, 14 CIT 608, 611 (1990).

“Courts have not hesitated to set aside agency determinations

which are the product of perfunctory investigations.”      Int’l

Bus. Machs., 29 CIT at __, 403 F. Supp. 2d at 1315.
Court No. 06-00338                                        Page        7


                         III. DISCUSSION

     The issue before the Court is whether Labor’s finding that

Plaintiffs’ skills are easily transferable is supported by

substantial evidence.

     Plaintiffs contend that Labor’s finding of fact is not

supported by substantial evidence by arguing that (1) a job

offer does not constitute substantial evidence that workers’

skills are easily transferable, (2) [ ] statements are

unreliable and therefore do not constitute substantial evidence,

and (3) Labor cannot rely on [ ] that Plaintiffs’ skills are

easily transferable because this is a legal conclusion.

     Labor contends that there is substantial evidence to

support its conclusion that Plaintiffs’ skills are easily

transferable to other positions in the local commuting area.     In

support of this, Labor argues that (1) it conducted a reasonable

investigation and, (2) it properly relied upon the factual

statements of a knowledgeable company official in reaching its

determination.

     Due to the nature of the TAA programs, Labor is “obligated

to conduct [its] investigation with the utmost regard for the

interest of the petitioning workers.”   BMC Software, 30 CIT at

__, 454 F. Supp. 2d at 1312 (quotation marks omitted).    The

second criterion for ATAA group eligibility—that the workers’

skills are not easily transferable to other employment—prevents
Court No. 06-00338                                         Page    8


workers who obtain new employment requiring similar skills from

receiving wage insurance benefits under ATAA.   See GAO Report

04–1012 at 26.   Labor’s own guidelines provide instructions on

how to gather evidence for this criterion:

     For criterion 2, the necessary information will . . .
     be obtained through telephone communication with the
     appropriate company official at the subject firm.
     Specifically, the company official will be asked to
     confirm that the worker group for whom a petition has
     been filed possesses job skills that are not easily
     transferable to other employment, with a focus on what
     skills the worker possesses.       Should the company
     official be unable to provide information as to
     whether the skills are easily transferable, the state
     . . . will be asked to furnish the assessment.

Guidance Letter, 69 Fed. Reg. at 60,905 (emphasis added).

     In addition to requiring non-transferability of skills at

the group certification level, one of the requirements of

individual ATAA eligibility is that the workers must obtain new

employment within twenty-six weeks of separation.   19 U.S.C. §

2318(a)(3)(B)(ii).   In other words, while the program requires

workers to find reemployment quickly, it only covers those who

quickly find reemployment requiring different skills.   See

Guidance Letter, 69 Fed. Reg. at 60,905 (“Under the ATAA

program, workers in an eligible worker group who are at least 50

years of age and who obtain different, full-time employment

within 26 weeks of separation from adversely-affected employment

at wages less than those earned in the adversely-affected

employment [will be eligible for ATAA benefits].” (emphasis
Court No. 06-00338                                           Page   9


added)).    As such, the program’s wage subsidy is clearly

designed to encourage older workers who might have difficulty

finding reemployment that utilizes their existing skill-sets to

quickly reenter the labor market by accepting lesser-paying

jobs.

        In this case, Labor appears to have lost sight of the

purpose of this criterion and, particularly, the evidence

required to satisfy it.1    [ ].   While [ ] provided ample room for

assumptions as to the skills of the workers and the types of

jobs that were offered, nothing [ ], or anywhere else in the

record, provides information regarding the actual skills of the

petitioning workers that would assist a Labor investigator in

assessing whether this criterion has been satisfied.




1
  It should be mentioned that Plaintiffs appear to have similarly
lost sight of the purpose of this criterion. The evidence that
Plaintiffs proffered in their application for reconsideration of
the initial negative determination regarding ATAA group
eligibility spoke only to unemployment statistics in the area
surrounding New Buffalo. See Pls.’ Mot. App. A 87–88 (Letter
from Thomas C. Carey, Associate General Counsel, International
Union, United Automobile, Aerospace and Agriculture Implement
Workers of America, to Edward Tomchick, Program Manager,
Division of Trade Adjustment Assistance, United States
Department of Labor, Attach. B–D (July 17, 2006)). As Labor
noted in its denial of the request for reconsideration, general
unemployment figures speak neither to the skills that the
Plaintiffs possess nor to the skills required by jobs
potentially available to Plaintiffs. See Pls.’ Mot. App. A 99
(Letter from Labor).
Court No. 06-00338                                             Page     10


          Moreover, [ ].2   Labor “cannot simply adopt as its own the

legal conclusions of employers . . . .        Rather, the agency must

reach its own conclusions, based on its own thoughtful,

thorough, independent analysis of all relevant record facts.”

Int’l Bus. Machs., 29 CIT at ___, 403 F. Supp. 2d at 1331.

Indeed, “it is Labor’s responsibility, not the responsibility of

the company official, to determine whether a former employee is

eligible for benefits.”        Former Employees of Federated Merch.

Group v. United States, Slip. Op. 05–16, 2005 WL 290015, at *6

(CIT Feb. 7, 2005).         [ ] cannot, without more, constitute

substantial evidence that the Plaintiffs’ skills are easily

transferable.

          [ ] is not instructive as to the workers’ skills because [

] fails to provide substantial evidence of skills either

possessed by the workers or required by the jobs that they were

allegedly offered.

          The only evidence in the record that speaks to the

transferability of skills is that Plaintiffs worked at a steel,

aluminum and bronze mold and cast products plant, and that they

were offered jobs at a nearby “foundry.”        See supra Part I.B.

Given the requirement that workers be employed within twenty-six

weeks of separation in order to be individually eligible for

ATAA benefits, 19 U.S.C. § 2318(a)(3)(B)(ii), it would be

2
    [ ]
Court No. 06-00338                                         Page   11


inapposite if evidence of a job offer alone could disqualify a

worker group.   The discovery that Plaintiffs were offered jobs

at a nearby foundry might give rise to a suspicion that they

were offered jobs similar to those that they had held at ISCCO.

However, without more information regarding the skills that the

workers possess and the skills required by the jobs that they

were allegedly offered, this evidence does not constitute

substantial evidence that the workers possess skills that are

easily transferable to other employment.

     This Court is not persuaded by Plaintiffs’ assertion that

Labor is not entitled to rely on the factual statements by [ ].

Labor is “entitled to base an adjustment assistance eligibility

determination on statements from company officials if [Labor]

reasonably concludes that those statements are creditworthy and

are not contradicted by other evidence.”   Former Employees of

Marathon Ashland Pipe LLC v. Chao, 370 F.3d 1375, 1385 (Fed.

Cir. 2004).   First, as Labor points out, [ ].   Plaintiffs’

contention that [ ], even if true, is not significant enough of

an error to question [ ] credibility with regard to the

information relating to criterion two.   Second, there is no

evidence in the record to contradict the relevant information

that [ ] provided Labor.   Plaintiffs’ unemployment statistics

are too general to give Labor good cause to question the

veracity of the specific information provided by [ ].
Court No. 06-00338                                         Page     12


Accordingly, Labor’s failure to satisfy the requirements of 19

U.S.C. § 2318(a)(3)(A)(ii) is not due to the source of the

evidence procured, but rather its lack of substantiality.

        Finally, given that further fact-finding is required to

determine the outcome of the ATAA petition, remand is the

appropriate remedy.    See 19 U.S.C. § 2395(c).   As such, the

Court need not address the issue of court-ordered certification

in the instant case.    See Former Employees of Int’l Bus. Machs.

Corp. v. U.S. Sec’y of Labor, 31 CIT at ___, 483 F. Supp. 2d

1284, 1337 (2007) (“[I]f a case of court-ordered certification

is to have any shot at surviving on appeal, it must be a clear-

cut case where another remand would be plainly futile.”).

                            IV. CONCLUSION

        For the foregoing reasons, this matter is hereby remanded

to Labor for reconsideration of Plaintiffs’ ATAA group

eligibility, with specific instructions to acquire more

information on criterion two.    A separate order will be issued

accordingly.



                                      /s/ Richard W. Goldberg___
                                      Richard W. Goldberg
                                      Senior Judge

Date:       July 10, 2007
            New York, New York
         UNITED STATES COURT OF INTERNATIONAL TRADE

FORMER EMPLOYEES OF INDEPENDENT
STEEL CASTINGS COMPANY, INC.,

                    Plaintiffs,    Before: Richard W. Goldberg,
                                   Senior Judge
                    v.
                                   Court No. 06-00338
UNITED STATES DEPARTMENT OF
LABOR,

                    Defendant,


                           ORDER

     Upon consideration of Plaintiffs’ motion for judgment
upon the agency record and briefs in support thereof,
Defendant’s brief in opposition thereto, upon all other
papers and proceedings had herein, and upon due
deliberation, it is hereby

     ORDERED that Labor’s negative determination of
Plaintiff’s ATAA eligibility is remanded; and it is further

     ORDERED that Labor shall, if it is able, point to
other record evidence or conduct further investigations to
determine whether the Plaintiffs possess skills that are
not easily transferable; and it is further

     ORDERED that Labor shall, within forty (40) days of
the date of this Order, issue a remand determination in
accordance with the instructions provided herein; and it is
further

     ORDERED that the parties may, within twenty (20) days
of the date on which Labor issues its remand determination,
submit briefs addressing Labor’s remand determination, not
to exceed twenty (20) pages in length; and it is further
     ORDERED that the parties may, within fifteen (15) days
of the date on which briefs addressing Commerce’s remand
determination are filed, submit response briefs, not to
exceed fifteen (15) pages in length.

        SO ORDERED.

                                 /s/ Richard W. Goldberg
                                 Richard W. Goldberg
                                 Senior Judge


Date:       July 10, 2007
            New York, New York
