                          Slip Op. 08-45

            UNITED STATES COURT OF INTERNATIONAL TRADE

UNITED STEEL, PAPER AND       :
FORESTRY, RUBBER,             :
MANUFACTURING, ENERGY, ALLIED :
INDUSTRIAL AND SERVICE WORKERS:
INTERNATIONAL UNION, LOCAL    :   Before: Richard K. Eaton, Judge
2911,                         :
                              :   Court No. 04-00492
                    Plaintiff,:
                              :
          v.                  :
                              :
UNITED STATES SECRETARY       :
OF LABOR,                     :
                              :
                    Defendant.:
                              :

                         OPINION AND ORDER

[United States Department of Labor’s final negative determination
denying plaintiff’s application for trade adjustment assistance
remanded.]

                                           Dated: April 30, 2008


     Stewart and Stewart (Terence P. Stewart), for plaintiff.

     Jeffrey S. Bucholtz, Acting Assistant Attorney General;
Jeanne E. Davidson, Director; Patricia M. McCarthy, Assistant
Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice (Claudia Burke), for defendant.


     Eaton, Judge:   This matter is before the court following

remand.   The primary remaining issue is whether the United States

Department of Labor’s (“Labor” or the “Department”) justification

for denying plaintiff United Steel, Paper and Forestry, Rubber,

Manufacturing, Energy, Allied Industrial and Service Workers
Court No. 04-00492                                       Page 2

International Union, Local 2911’s (“ISU”)1 request to extend

Weirton Steel Corporation’s (“Weirton”) Trade Adjustment

Assistance (“TAA”) eligibility certification was lawful.    See

Letter Dated Sept. 24, 2004 from Labor to Mr. Terence P. Stewart,

Suppl. Admin. R. (“SR”) at 16-17 (the “Denial Letter”); Notice of

Determinations Regarding Eligibility to Apply for Worker

Adjustment Assistance and NAFTA Traditional Adjustment

Assistance, 67 Fed. Reg. 22,112 (Dep’t of Labor May 2, 2002) (the

“2002 Certification”).

     In Independent Steelworkers Union v. United States Secretary

of Labor, 30 CIT __, Slip Op. 06-171 (Nov. 17, 2006) (not

reported in the Federal Supplement) (“Steelworkers”), this court

held that it possessed jurisdiction to review Labor’s denial of

plaintiff’s request to extend the duration of its 2002 group

eligibility certification.   The court, however, reserved judgment

on the legal and factual justification for the denial pending

Labor’s assembly and submission of a complete administrative

record relating to the amendment request.   See id. at __, Slip



     1
        During the pendency of this action, the court granted
plaintiff’s consent motion to be substituted in this action as
plaintiff. See United Steel, Paper and Forestry, Rubber, Mfg.,
Energy, Allied Indus. and Serv. Workers Int’l Union, Local 2911
v. United States Sec’y of Labor, Court No. 04-492, July 13, 2007
(order substituting party and amending caption). At all times
pertinent to this motion and the development of the facts
relevant to this litigation, however, plaintiff was known as
Independent Steelworkers Union. Therefore, for purposes of
convenience, the court refers to plaintiff as “ISU.”
Court No. 04-00492                                       Page 3
Op. 06-171 at 3, 30-31.    Accordingly, the court now examines

Labor’s reasons for the denial.

     Plaintiff contends that Labor’s denial of its request to

extend the 2002 Certification inadequately addressed prior

instances where TAA eligibility certifications had been amended

to extend their expiration dates.    See Pl.’s Rule 56.1 Motion for

J. Agency R. (“Pl’s Br.”) 24-26.    Plaintiff thus maintains that,

given the record before it, “the Department failed in its

obligation to articulate a satisfactory explanation for its

action.”   Pl.’s Br. 28.

     Labor asserts that it properly denied plaintiff’s amendment

request.   The Department’s primary argument is that it granted

past extensions only where production at the workers’ plant

ultimately ceased.   See Denial Letter, SR at 16-17; see also

Def.’s Motion for Leave to Respond to Pl.’s Suppl. Citations and

Resp. to Pl.’s Suppl. Citations (“Def.’s Resp. Pl.’s Suppl.

Cit.”) 2-3.   Labor claims that an extension of Weirton’s

certification would be against its established policy because

production at the Weirton plant was continued by its purchaser

(albeit without those workers now seeking TAA benefits).

     While the court has previously found that jurisdiction lies

with 28 U.S.C. § 1581(d)(1) (2000) and 19 U.S.C. § 2395(c) or,

alternatively, 28 U.S.C. § 1581(i)(4), for the purposes of this

opinion, jurisdiction is assumed only under the latter provision.

See 28 U.S.C. § 1581(i)(4) (stating that the Court has residual
Court No. 04-00492                                           Page 4
jurisdiction over “administration and enforcement” of, among

other determinations, any final determination by Labor concerning

the eligibility of workers for TAA benefits); see also

Steelworkers, 30 CIT at __, Slip Op. 06-171 at 21-30.

     For the following reasons, Labor’s negative determination

embodied in its Denial Letter is remanded.



                              BACKGROUND

     The procedural history and factual background of this matter

need not be repeated in their entirety for purposes of this

opinion.     See generally Steelworkers, 30 CIT __, Slip Op. 06-171.

Nevertheless, a recapitulation of the salient events preceding

and following Steelworkers is warranted.

     Weirton was a steel producer.     Faced with “serious

difficulties due to import surges” and financial hardship, the

ISU, on Weirton’s behalf, successfully petitioned Labor in mid-

2001 for eligibility of the Weirton workers to apply for TAA

benefits.2    Pl.’s Br. 3-4 (citations omitted).   The resulting


     2
        The group eligibility requirements for TAA benefits are
as follows:

             (a) In general

             A group of workers (including workers in any
             agricultural firm or subdivision of an
             agricultural firm) shall be certified by the
             Secretary as eligible to apply for adjustment
             assistance under this part pursuant to a
             petition filed under section 2271 of this
                                                       (continued...)
Court No. 04-00492                                           Page 5



     2
         (...continued)
             title if [Labor] determines that--

             (1) 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

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

             (ii) imports of articles like or directly
             competitive with articles produced by such
             firm or subdivision have increased; and

             (iii) the increase in imports described in
             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)(i) there has been a shift in production
             by such workers’ firm or subdivision to a
             foreign country of articles like or directly
             competitive with articles which are produced
             by such firm or subdivision; and

             (ii)(I) the country to which the workers’
             firm has shifted production of the articles
             is a party to a free trade agreement with the
             United States;

             (II) the country to which the workers’ firm
             has shifted production of the articles is a
             beneficiary country under the Andean Trade
             Preference Act, African Growth and
             Opportunity Act, or the Caribbean Basin
             Economic Recovery Act; or

             (III) there   has been or is likely to be an
             increase in   imports of articles that are like
             or directly   competitive with articles which
             are or were   produced by such firm or
                                                        (continued...)
Court No. 04-00492                                           Page 6
2002 Certification found all Weirton workers who became totally

or partially separated from employment on or after July 3, 2000

eligible to apply for TAA cash benefits.      See 2002 Certification,

67 Fed. Reg. at 22,113.     The 2002 Certification was to remain in

effect for two years from the date of certification, and thus was

to expire on April 23, 2004.      See 19 U.S.C. § 2291(a).   In May

2003, however, approximately one year prior to the 2002

Certification’s expiration, Weirton filed for Chapter 11

bankruptcy.     See Pl.’s Br. 7; see also Weirton Steel Corp.

Voluntary Pet. Chapter 11 Bankr., AR at 188-89.      Thereafter,

Weirton officials agreed to sell the company’s assets——but not

the company itself——to its competitor International Steel Group

(“ISG”).     See Pl.’s Br. 8.   To complete the sale, Weirton

retained some of its workers to maintain the plant and ensure a

smooth transition of the facilities to the new owners.3       See


     2
         (...continued)
             subdivision.

19 U.S.C. § 2272.     See also 19 U.S.C. §§ 2271, 2273.
     3
        At oral argument, plaintiff’s counsel explained
plaintiff’s characterization of why workers were kept on at the
plant, and why steel production continued, as follows:

             If you just idle, cold idle a steel mill,
             it’s hugely expensive to start it back up.
             You have to keep the furnaces going and while
             you’re doing that you make steel, and that
             preserves the assets for the new owners that
             are going to come in and take over the place
             a few weeks later. So yes, it is accurate
                                                       (continued...)
Court No. 04-00492                                          Page 7
Letter Dated Sept. 14, 2004 from Mr. Terence P. Stewart to Labor,

SR at 12-15 (the “Stewart Letter”).

     On March 9, 2004, the ISU filed a new petition with Labor

seeking TAA re-certification for Weirton’s workers based on facts

present during a 2002 - 2003 investigatory period.     See Weirton

Steel Corp. Petition for TAA Dated Mar. 9, 2004 (the “2004

Petition”), AR at 2-40.     Labor filed a negative determination

with respect to this petition on June 2, 2004, finding that

Weirton workers failed to meet the statutory requirements for

certification.     That is, Labor found that during the 2002–2003

investigatory period: (1) under 19 U.S.C. § 2272(a)(2)(A)(iii),

increased steel imports did not contribute importantly to the

worker separations, and, (2) under § 2272(a)(2)(B)(i), steel

imports had not led Weirton to shift its production to a foreign

country.     See Weirton Steel Corp., Weirton, WV; Negative

Determination Regarding Eligibility To Apply for Worker

Adjustment Assistance and Alternative Trade Adjustment Assistance

(Dep’t of Labor May 14, 2004), AR at 101–03 (the “Negative



     3
         (...continued)
             that steel production continued. But we
             characterize, and the company Weirton
             characterizes what was going on at that time
             to winding down its steel production
             operations before transferring to new
             ownership, new management.

Transcript of Oral Argument at 23, Court No. 04-00492 (July 28,
2005).
Court No. 04-00492                                        Page 8
Determination”); Notice of Determinations Regarding Eligibility

To Apply for Worker Adjustment Assistance, 69 Fed. Reg. 31,134,

31,135 (Dep’t of Labor June 2, 2004) (notice).

     Thereafter, on July 23, 2004, Labor denied plaintiff’s

request for administrative reconsideration of the Negative

Determination.    See Weirton Steel Corp., Weirton, WV; Notice of

Negative Determination Regarding Application for Reconsideration

(Dep’t of Labor July 23, 2004), AR at 195-97 (the

“Reconsideration Denial”); Weirton Steel Corp., Weirton, WV;

Notice of Negative Determination Regarding Application for

Reconsideration, 69 Fed. Reg. 47,184 (Dep’t of Labor Aug. 4,

2004) (notice).

     On September 14, 2004, having failed to secure benefits by

way of a re-certification, the ISU wrote Labor to “formally

request that [Labor] amend the [2002] TAA certification to change

its expiration date from April 23, 2004, to May 18, 2004, so as

to include all workers of Weirton Steel who were adversely

affected by increased imports.”    See Stewart Letter, SR at 12-15.

The Stewart Letter details the circumstances that Weirton

believed justified an amendment to extend the 2002 Certification.

Specifically, it recounts that the 2002 Certification’s

expiration date of April 23, 2004 “came just a few weeks before

substantially all of the production assets of Weirton Steel

Corporation were acquired out of bankruptcy” by ISG, and that on
Court No. 04-00492                                        Page 9

May 18, 2004 “Weirton ceased to exist as a producer of steel and

[that its remaining] employees were permanently separated from

the company.”4   See Stewart Letter, SR at 13.   It is those

workers who remained with the company for the three to four weeks

after the 2002 Certification expired, but before Weirton’s sale

was completed, that are the subject of Weirton’s request to

extend the 2002 Certification.   Stewart Letter, SR at 13-14.

     According to plaintiff, the remaining workers “were engaged

in preserving Weirton’s assets and facilities and preparing them

for the sale to ISG.”5   Stewart Letter, SR at 14.   Plaintiff

maintained that only an amendment of the 2002 Certification

“would ensure that all the workers of Weirton Steel who were

adversely affected by increased imports are included under [the

2002] Certification and eligible for needed assistance.”       Stewart

Letter, SR at 14.

     In addition, the Stewart Letter stated that it was

plaintiff’s “understanding that the Department has previously

amended TAA certifications to extend the period of eligibility


     4
        The Stewart Letter notes that Weirton “spent several
years trying to stave off bankruptcy,” which involved “workforce
reductions,” and then submitted a re-organization plan to the
bankruptcy court “which called for eliminating an additional 950
jobs.” See Stewart Letter, SR at 13.
     5
        The Stewart Letter recounts Weirton’s attempt to file a
new petition in 2004 and Labor’s Negative Determination and
Reconsideration Denial, since sustained by this court in
Steelworkers. See Stewart Letter, SR at 14; Steelworkers, 30 CIT
at __, Slip Op. 06-171 at 31.
Court No. 04-00492                                        Page 10

where workers have been retained beyond the original expiration

date of a certification.”    Stewart Letter, SR at 14, n. 5 (citing

O/Z-Gedney Co., Div. of EGS Elec. Group, Terryville, CT; Amended

Certification Regarding Eligibility To Apply for Worker

Adjustment Assistance, 69 Fed. Reg. 43,454 (Dep’t of Labor July

20, 2004) (“O/Z-Gedney”); Wiegand Appliance Div., Emerson

Electric Co., Vernon, AL; Amended Certification Regarding

Eligibility To Apply for Worker Adjustment Assistance, 58 Fed.

Reg. 50, 198 (Dep’t of Labor Aug. 20, 2003) (“Wiegand”)).

     By letter dated September 24, 2004, Labor denied the ISU’s

amendment request for two reasons.   The first was that the facts

presented here were distinguishable from the facts of the two

cases cited in plaintiff’s amendment request (O/Z-Gedney and

Wiegand), because here production at the plant continued whereas

in the other instances “workers were retained to assist with the

plant closure after production had ceased.”    See Denial Letter,

SR at 16 (emphasis added).   The second was that, after a “full

and careful investigation for the relevant period,”6 Labor

determined that workers’ separation from the company was not due



     6
        The Denial Letter references plaintiff’s 2004 Petition
and thus the court assumes that Labor’s second reason relates to
the denial of plaintiff’s application for re-certification and
not to its application to extend the period of eligibility under
the 2002 Certification. It appears, therefore, that Labor
conducted no separate investigation relating to the amendment
request and consequently made no findings as to whether the
workers were adversely affected by imports.
Court No. 04-00492                                        Page 11

to an increase in imports.   This second reason was apparently a

reference to the 2004 Petition for re-certification.     See Denial

Letter, SR at 16.

     In Steelworkers, plaintiff sought judicial review of Labor’s

Negative Determination and Reconsideration Denial concerning its

2004 Petition, as well as the denial of plaintiff’s amendment

request embodied in Labor’s September 14, 2004 Denial Letter.

The court sustained Labor’s Negative Determination and

Reconsideration Denial resulting from plaintiff’s 2004 Petition,

but denied Labor’s motion to dismiss Count IV of plaintiff’s

complaint (seeking review of the denial of the amendment request)

for lack of subject matter jurisdiction.    See Steelworkers, 30

CIT at __, Slip Op. 06-171 at 31.   The court, however, reserved

judgment on the substantive issues surrounding plaintiff’s

amendment request “until such time as Labor assembles and submits

the administrative record for the requested extension.”    Id. at

__, Slip Op. 06-171 at 3.    Accordingly, Steelworkers remanded the

matter to Labor “with instructions to assemble and submit to the

court the administrative record regarding plaintiff’s amendment

claim . . . .”   Id. at __, Slip Op. 06-171 at 31.

     On remand, Labor compiled a Supplemental Administrative

Record and filed it with the court on January 29, 2007.    The

record consists solely of: (1) the September 14, 2004 Stewart

Letter (SR at 12-15); (2) Labor’s responsive Denial Letter of
Court No. 04-00492                                        Page 12

September 24, 2004 (SR at 16-17); and, (3) the January 24, 2007

Declaration of Linda G. Poole, Program Analyst in Labor’s

Employment and Training Administration, Division of TAA (SR at 1-

11, with accompanying exhibits (the “Poole Declaration”)).    The

Poole Declaration sets forth, what is represented to be, Labor’s

policy on amending TAA certifications to extend their coverage

periods and seeks to explain Labor’s amendment that extended

benefits in the investigation AII Technologies, Inc., El Paso,

TX, 68 Fed. Reg. 43,757 (Dep’t of Labor July 24, 2003) (“AII

Technologies”).   See Poole Declaration, SR at 1-2.

     On February 9, 2007, plaintiff filed a motion to strike the

Poole Declaration from the Supplemental Administrative Record.

See Mot. Strike Doc. 1 From Suppl. Admin. R. (“Pl.’s Mot.

Strike”).   Plaintiff argued that the Poole Declaration was a

“post hoc rationalization” of Labor’s denial, because it was

dated almost two-and-one-half years after the agency action, and

thus could not have been considered by Labor in its

decisionmaking process.   See Pl.’s Mot. Strike 3.    In opposition,

Labor argued that the court’s Steelworkers decision “expressly

raised the question whether Labor had a policy of refusing to

extend certifications” and that the Poole Declaration addressed

both the existence of that policy and distinguished the specific

extensions raised by plaintiff.   See Def.’s Opp. Mot. Strike.

Doc. One From Suppl. Admin. R. (“Def.’s Opp. Mot. Strike”) 1-3.
Court No. 04-00492                                        Page 13

     On April 11, 2007, the court denied plaintiff’s motion to

strike.   See Indep. Steelworkers Union v. United States Sec’y of

Labor, Court No. 04-00492 (Apr. 11, 2007) (order).   The court

concluded:

          Ms. Poole’s declaration may be included in
          the record. Although it is dated long after
          Labor’s final determination was made and so
          was not before Labor at the time of its
          decision, the declaration sheds light on what
          is described therein as Labor’s “policy with
          respect to extension of certifications.” It
          does not appear to be a post hoc
          rationalization but rather a good faith
          effort to describe her understanding of
          Labor’s administration of the trade
          adjustment program during 2005.

Id. at 1-2 (citation omitted).



                        STANDARD OF REVIEW

     In cases under 28 U.S.C. § 1581(i), this Court applies the

default standard of review set forth in the Administrative

Procedure Act (“APA”) and therefore will “hold unlawful and set

aside agency action, findings, and conclusions found to be . . .

arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law . . . .”   See 5 U.S.C. § 706(2); see also

Former Employees of Alcatel Telecomm. Cable v. Herman, 24 CIT

655, 658-59, Slip Op. 00-88 at 6-7 (2000).   “The scope of review

under [the] arbitrary and capricious standard is narrow.”

Cathedral Candle Co. v. United States Int’l Trade Comm’n, 27 CIT

1541, 1545, 285 F. Supp. 2d 1371, 1375 (2003) (citations and
Court No. 04-00492                                      Page 14

quotations omitted).   Under this standard, “the court (1) must

consider whether the decision was based on a consideration of

relevant factors and whether there has been a clear error of

judgment, and (2) analyze whether a rational connection exists

between the agency’s factfindings and its ultimate action.”     See

Consol. Fibers, Inc. v. United States, 32 CIT __, __, Slip Op.

08-2 at 17 (Jan. 10, 2008) (citations omitted); see also

Cathedral Candle Co., 27 CIT at 1545, 285 F. Supp. 2d at 1375

(reasoning that if this standard is met, “the Court will not

substitute its own judgment for that of the agency”).   Further,

the APA provides that, “[t]o the extent necessary to decision and

when presented, the reviewing court shall decide all relevant

questions of law, interpret constitutional and statutory

provisions, and determine the meaning or applicability of the

terms of an agency action.” 5 U.S.C. § 706.



                             DISCUSSION

I.   Plaintiff’s Arguments

     Plaintiff maintains that Labor’s denial is flawed in several

respects.   First, plaintiff argues that Labor failed in its

attempt to distinguish, from the facts of this case, two prior

instances where it amended the expiration dates of

certifications, i.e., O/Z-Gedney and Wiegand.   See Pl.’s Br. 25

(citations omitted).   Labor’s Denial Letter noted that, in those
Court No. 04-00492                                          Page 15

two cited instances, “workers were retained to assist with the

plant closure after production had ceased.    That is not the case

for workers at Weirton Steel.    Production of steel products at

the Weirton, West Virginia plant continued during the period

relevant to the investigation.”    Denial Letter, SR at 16.

     Plaintiff further argues that Labor’s Denial Letter is

unlawful because it did not reference Labor’s “standard” to

encompass all workers “adversely affected by increased imports”

and failed to explain the phrase “period relevant to the

investigation.”    See Pl.’s Br. 25-26 (quotations and citations

omitted).    Plaintiff notes that, in the absence of a standard

enunciated in the statute or the regulations, in ruling on

expiration date amendment requests, Labor has consistently

applied the “standard” that it seeks “to include . . . all

workers . . . who were adversely affected by increased imports.”

See Pl.’s Br. 26 (citing AII Technologies, 68 Fed. Reg. at

43,757).

     Plaintiff additionally argues that Labor did not offer an

adequate explanation for its determination or demonstrate a

“rational connection” between the facts found and the decision

rendered.    Pl.’s Br. 27.

            The several hundred worker separations that
            occurred after April 23[,2004] were, like
            those that occurred earlier, due in large
            part to imports; the chain of causation . . .
            was unbroken. These terminations would have
            happened earlier but for the efforts of the
Court No. 04-00492                                          Page 16

           Company to avoid bankruptcy and liquidation
           though a variety of restructuring plans, all
           of which ultimately failed to save the
           company but did preserve some value of the
           assets for sale.

Pl.’s Br. 27.   Plaintiff claims that those workers who remained

with Weirton for the several weeks following the 2002

Certification’s expiration were, like their counterparts who

received benefits, separated from the company as a result of

being “adversely affected by increased imports in the earlier

time period.”   Pl.’s Br. 27-28.   In plaintiff’s view, Labor’s

failure to reference this information in its Denial Letter

rendered its determination unlawful.    See Pl.’s Br. 28.



II.   Labor’s Arguments

      Labor’s brief primarily asserts jurisdictional arguments,7

however, its arguments for denying plaintiff’s amendment request

are contained both in (1) Labor’s response to plaintiff’s motion

to strike the Poole Declaration from the record and (2) Labor’s

response to plaintiff’s supplemental citations.

      In seeking to include the Poole Declaration in the



      7
        Labor’s decision not to file the administrative record
relating to plaintiff’s request to amend the 2002 Certification
underscores the notion that Labor’s first responsive brief does
not address this issue in any appreciable fashion. See Def.’s
Resp. 16, n. 2. Labor’s reply brief in further support of its
motion to dismiss, too, does not address the substance of its
denial, but makes only jurisdictional arguments. See Def.’s
Reply Pl.’s Resp. Def.’s Mot. Dismiss Count IV Compl.
Court No. 04-00492                                        Page 17

Supplemental Administrative Record, Labor claimed that the

declaration “completes Labor’s initial explanation” of the

“policy” behind its denial and asserts its belief that the policy

was considered in reaching its determination.   See Def.’s Opp.

Mot. Strike 3, 5 (stating that “Labor directly addressed its

policy in its denial of ISU’s request” and “[t]herefore, Labor’s

policy regarding requests for extensions is a matter that was

considered in reaching the conclusion in this determination”)

(internal citation omitted).

     In responding to plaintiff’s list of alleged analogous

citations, Labor elaborated:

          [T]he situations addressed by the amendments
          that extended the time period for coverage of
          certain workers are not the same as the
          situation upon which plaintiff based its
          request to extend the time for an elapsed
          certification. Here, the undisputed facts
          are that the company was not closing,8 it was
          being sold to a new owner who continued to
          operate the business . . . .

Def.’s Resp. Suppl. Citations 2.

     Put another way, Labor finds the facts here distinguishable

from prior cases because Weirton’s facility was never fully shut


     8
        This statement appears to be at odds with the facts.
According to the Stewart Letter and as represented by counsel at
oral argument, the company was indeed closing, and it was only
the manufacturing facility (described as Weirton’s “assets and
facilities”) that was sold to ISG to continue steel production
operations. See Stewart Letter, SR at 13-14; see also supra, n.
3. Weirton continued producing steel in a limited capacity in
order to preserve the production assets for the plant’s new
owner, ISG.
Court No. 04-00492                                        Page 18

down, as production continued in some limited capacity until the

plant was turned over to ISG which continued production.    Thus,

the fact that Weirton’s plant was sold, but never closed, was the

cornerstone of Labor’s denial.



III.    Labor Failed Adequately to Explain its Decision

       “A fundamental requirement of administrative law is that an

agency set forth its reasons for decision.”     Tourus Records, Inc.

v. DEA, 259 F.3d 731, 737 (D.C. Cir. 2001) (quotations omitted).

A necessary corollary of this requirement is that the agency’s

reasoning is presented in a logical fashion “such that a court

may follow and review its line of analysis, its reasonable

assumptions, and other relevant considerations.”     Int’l Imaging

Materials, Inc. v. United States Int’l Trade Comm’n, 30 CIT __,

Slip Op. 06-11 at 13 (2006) (not reported in the Federal

Supplement) (quotations omitted).    “Explanation is necessary . .

. for this court to perform its statutory review function.”     Id.

at __, Slip Op. 06-11 at 13.    This court “must know what a

decision means before the duty becomes ours to say whether it is

right or wrong.”     Atchinson, T. & S.F. Ry. Co. v. Wichita Bd. of

Trade, 412 U.S. 800, 807 (1973) (quotations omitted).

       Labor’s Denial Letter gives two reasons justifying its

refusal to extend the 2002 Certification.     See Denial Letter, SR

at 16.    The first is that the O/Z Gedney and Wiegand
Court No. 04-00492                                         Page 19

certifications cited by plaintiff as precedent for its claim are

distinguishable from the facts presented here.      Specifically,

Labor states that, unlike here, both earlier certifications

involved situations where “workers were retained to assist with

the plant closure after production had ceased.”      Denial Letter,

SR at 16 (emphasis added).   The second reason is that Labor

“conducted a full and careful investigation” relative to

Weirton’s 2004 Petition for re-certification, which resulted in a

negative determination, and therefore that Labor concluded that

the relevant Weirton workers were not adversely impacted by

increases in imports.9   Denial Letter, SR at 16.

     With respect to the first argument, Labor has set forth a

purported factual distinction between this matter and those

others cited by plaintiff.   Labor’s Denial Letter, however, fails


     9
        Labor now maintains that it lacks authority to extend the
2002 Certification beyond April 23, 2004 and that it exceeded its
authority in the past when extending expiration dates. See
Def.’s Resp. Suppl. Citations 1-2. Labor’s purported lack of
authority was not raised in its Denial Letter, but rather first
raised at oral argument, and then in its supplemental briefs.
Labor’s position is unpersuasive as this ground was not invoked
by Labor in its Denial Letter in the first instance, but rather
was first invoked before the court. “The courts may not accept
appellate counsel’s post hoc rationalizations for agency action .
. . . For the courts to substitute their or counsel’s discretion
for that of the [agency] is incompatible with the orderly
functioning of the process of judicial review.” See Burlington
Truck Lines, Inc. v. United States, 371 U.S. 156, 168-69 (1962)
(quotation omitted). Indeed, the Denial Letter seems to say
that, had Weirton’s facts been as those in O/Z Gedney and
Wiegand, the extension would be within the precedent and thus
presumably approved. See Denial Letter, SR at 16.
Court No. 04-00492                                        Page 20

to explain why this factual distinction matters.    According to

Labor, the end result for the workers in O/Z Gedney and Wiegand

is that they were separated from their jobs.    Denial Letter, SR

at 16.   The evidence here indicates that, within three to four

weeks of the 2002 Certification’s expiration, all of Weirton’s

workers lost their jobs.    Stewart Letter, SR at 13.   In the O/Z

Gedney and Wiegand cases the manufacturing facilities were

seemingly closed.    Here, the facility was sold to another

corporation, but never fully shut down.    The Department seems to

suggest that it is significant that the facility was kept in

operation after its transfer to ISG.    Labor fails, however, to

say why this fact is significant.    For the court, the salient

facts in the O/Z Gedney and Wiegand line of investigations and

Weirton are the same.   That is, in each case (1) the company’s

workers were found eligible for benefits; (2) certain workers

were retained for some time after the expiration of the

certification; and, (3) the jobs of those workers were then

terminated.

     As to its second reason, the Department’s apparent

references to its re-certification investigation are wholly

irrelevant to the separate issue of whether it should grant an

extension to the 2002 Certification.    In other words, there does

not appear to be any connection between the denial of the March

9, 2004 application for re-certification (which would have re-
Court No. 04-00492                                       Page 21

certified Weirton workers as eligible to apply for benefits for

up to two years from the date of certification) and the process

resulting in the decision not to extend the 2002 Certification

(which would have made Weirton workers eligible to apply for

benefits up through and including May 18, 2004).    Nor is there

any evidence that Labor conducted any investigation under 19

U.S.C. §§ 2271 and 2272 when making its determinations to extend

the period of certification in other cases.    See O/Z Gedney, 69

Fed. Reg. at 43,454; Wiegand, 68 Fed. Reg. at 50,198.    This

court, therefore, particularly in light of Labor’s reference to

an “investigation,” cannot say that Labor has “articulate[d] a

satisfactory explanation for its action including a rational

connection between the facts found and the choice made.”    See

Former Employees of Chevron Prods. Co. v. United States Sec’y of

Labor, 27 CIT 1135, 1143, 279 F. Supp. 2d 1342, 1349 (2003)

(internal citations and quotations omitted).

     The inadequacy of Labor’s explanation is amplified by the

cases cited by plaintiff in its list of supplemental citations,

as requested by the court at oral argument.    See Pl.’s Suppl.

Citations Cert. Amendments (“Pl.’s Suppl. Cit.”).    Plaintiff

cites eleven cases in which Labor amended the expiration date of

worker certifications.   The court’s review of these matters

reveals that, in recent years, Labor has amended certification

periods to cover workers who remained employed beyond the
Court No. 04-00492                                        Page 22

original expiration date in a wide variety of circumstances.

     For instance, Labor has extended benefits to workers on both

a prospective basis (i.e., where the amendment was made before

the workers were separated from the company but after the date of

their planned separation was known) and retroactive basis (i.e.,

where the amendment was made after the workers were separated

from the company).   Compare Motorola, Inc. Pers. Commc’ns Sector,

Harvard, IL; Amended Certification Regarding Eligibility To Apply

for Worker Adjustment Assistance, 68 Fed. Reg. 17,675 (Dep’t of

Labor Apr. 10, 2003) (on April 10, 2003, extending a

certification set to expire on April 13, 2003, until August 15,

2003), with Carlisle Engineered Prods., Erie, PA; Amended

Certification To Apply for Worker Adjustment Assistance, 69 Fed.

Reg. 6,693 (Dep’t of Labor Feb. 11, 2004) (“Carlisle”) (on

February 11, 2004, extending the certification that previously

expired on January 29, 2004, until May 31, 2004).

      Labor has also extended certification periods without

regard to whether the extension benefitted a single worker or

multiple workers.    Compare Cooper Wiring Devices--Georgetown, SC;

Amended Certification Regarding Eligibility To Apply for Worker

Adjustment Assistance, 69 Fed. Reg. 52,311 (Dep’t of Labor Aug.

25, 2004) (one worker), with Wolverine Worldwide, Inc.,

Kirksville, MO; Amended Certification Regarding Eligibility To

Apply for Worker Adjustment Assistance, 68 Fed. Reg. 6,216 (Dep’t
Court No. 04-00492                                      Page 23

of Labor Feb. 6, 2003) (one worker) (“Wolverine”), with Carlisle,

69 Fed. Reg. at 6,693 (unspecified amount of multiple workers).

Likewise, Labor has amended certification periods regardless of

whether the petition was brought by the employer or by a state

agency.   Compare O/Z Gedney, 69 Fed. Reg. at 43,454 (noting that

the amendment request was made by a “company official”), with

Wolverine, 68 Fed. Reg. 6,217 (noting that the amendment request

was made by “the company and the State agency”), and Lomac LLC,

Muskegon, MI; Amended Certification Regarding Eligibility To

Apply for Worker Adjustment Assistance, 69 Fed. Reg. 46,573

(Dep’t of Labor Aug. 3, 2004) (noting that the amendment request

was made solely by a “state agency representative”).

     Furthermore, and most significantly, although Labor now

argues that it only grants extensions where production at the

workers’ plant ultimately ceases, plaintiff cites two situations

where it is unclear whether the plant in question ultimately

closed.   See Wiegand, 68 Fed. Reg. at 50,198; AII Technologies,

68 Fed. Reg. at 43,757.   In these cases, Labor’s published

Federal Register notices indicate only that the “company closed,”

but do not state whether the production facility itself closed,

or perhaps remained operational under different ownership, as is

the case here.   In sum, the court’s review of those matters cited

by plaintiff provides little guidance as to the criteria by which

Labor assesses amendment requests.
Court No. 04-00492                                       Page 24

     Additionally, in this instance Labor relies on its “policy”

not to extend certifications under plaintiff’s circumstances.

But, this reference to its policy does not allow this court, in

hindsight, to “follow and review its line of analysis, its

reasonable assumptions, and other relevant considerations.”

Int’l Imaging Materials, Inc., 30 CIT at __, Slip Op. 06-11 at 13

(quotations omitted).   The court’s review of the citations

provided by plaintiff demonstrates that Labor has had a clear

policy of extending certifications.   See generally Pl.’s Suppl.

Cit.; see also Poole Declaration, SR at 1-2.   Indeed, Labor has

cited no case where it turned down an application for an

extension.   See generally Def.’s Resp.; Def.’s Resp. Pl.’s Suppl.

Cit.; Def.’s Opp. Mot. Strike.

     It is well-settled that “[a]n agency is obligated to follow

precedent, and if it chooses to change, it must explain why.”

M.M. & P. Mar. Advancement, Training, Educ. & Safety Program v.

Dep’t of Commerce, 729 F.2d 748, 755 (Fed. Cir. 1984).     Although

an agency may modify its policies even absent a statutory change,

it must always justify the reason for making the change.      See

Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.

Cir. 1970) (“[A]n agency changing its course must supply a

reasoned analysis indicating that prior policies and standards

are being deliberately changed, not casually ignored, and if an

agency glosses over or swerves from prior precedents without
Court No. 04-00492                                       Page 25

discussion it may cross the line from the tolerably terse to the

intolerably mute.”) (footnotes omitted).

     Here, Labor has failed to supply the court with any

justification or explanation of its claimed evolving policy

regarding amendments under the circumstances presented here, let

alone a “reasoned analysis.”    See British Steel PLC v. United

Stated, 127 F.3d 1471, 1475 (Fed. Cir. 1997); Atchinson, T. &

S.F. Ry. Co., 412 U.S. at 807-08 (“Whatever the ground for [an

agency’s] departure from prior norms . . . it must be clearly set

forth so that the reviewing court may understand the basis of the

agency’s action and so may judge the consistency of that action

with the agency’s mandate.”).    Moreover, Labor did not “explain

its application of the law to the found facts,” which reveal

that, though production did not cease at the Weirton plant, the

Weirton workers were all separated from the company within weeks

of April 23, 2004.    See In re Sang Su Lee, 277 F.3d 1338, 1342

(Fed. Cir. 2002).    Labor’s actions were thus arbitrary and

capricious, an abuse of discretion, and not in accordance with

law, and, therefore, a further remand is warranted.    See Motor

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43-44 (1983) (reasoning that an action is

arbitrary and capricious when the agency “entirely failed to

consider an important aspect of the problem, [and] offered an

explanation for its decision that runs counter to the evidence”).
Court No. 04-00492                                      Page 26

                            CONCLUSION

     Based on the foregoing, the court remands this case to

Labor.   On remand, Labor is ordered to: (1) clarify the basis of

and fully explain any decision it reaches; (2) establish the

facts upon which it makes its determination and state precisely

why it is, or is not, significant that the Weirton plant did not

close; (3) clearly explain why, if it all, the Weirton workers

who lost their jobs after April 23, 2004, should be treated

differently than those who lost their jobs prior to that date;

(4) set forth its current and past policy regarding amendments to

the expiration date of certifications; (5) explain how this case

is different, if at all, from previous cases where it extended

worker certifications; (6) set forth all steps, if any, taken to

change its policy with respect to extensions, including any

measures taken to notify the public, and the dates on which all

such steps were undertaken; (7) set forth the criteria upon which

it makes any determination to extend or not to extend the subject

certification; and (8) explain why its determination is in accord

with the remedial nature of the TAA statute.

     Remand results are due August 28, 2008.   Comments to the

remand results are due September 29, 2008.   Replies to such
Court No. 04-00492                                 Page 27

comments are due October 13, 2008.


                                     /s/ Richard K. Eaton
                                         Richard K. Eaton



Dated:    April 30, 2008
          New York, New York
                             ERRATUM

United Steel, Paper and Forestry, Rubber, Mfg., Energy, Allied
Indus. and Serv. Workers Int’l Union, Local 2911 v. United States
Sec’y of Labor, Court No. 04-492, Slip Op. 08-45 (Apr. 30, 2008).

Page 1:   “J. Daniel Stirk and Sarah V. Stewart” are added after
          the name “Terence P. Stewart” as counsel for plaintiff.


May 12, 2008
