                                         Slip Op. 09-73

                UNITED STATES COURT OF INTERNATIONAL TRADE


  BAO ZHU CHEN, MEI YUN ZHENG, and
  CONNIE CHEN, FORMER EMPLOYEES
  OF ADVANCED ELECTRONICS, INC.,

                 Plaintiffs,                            Before: Timothy C. Stanceu, Judge

                 v.                                     Court No. 06-00337

  HILDA L. SOLIS, SECRETARY, UNITED
  STATES DEPARTMENT OF LABOR,

                 Defendant.



                                   OPINION AND ORDER

[Granting request for voluntary remand of determination denying eligibility for benefits under the
Trade Adjustment Assistance and Alternative Trade Adjustment Assistance programs]

                                                            Dated: July 16, 2009

       Greater Boston Legal Services (Cynthia Mark and Monica Halas) for plaintiffs.

        Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Franklin E. White,
Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department
of Justice (Meredyth Cohen Havasy); R. Peter Nessen and Frank Buckley, Office of the Solicitor,
United States Department of Labor, of counsel, for defendant.

       Stanceu, Judge: Before the court is the Notice of Negative Determination On Remand

(“Third Notice”) of the United States Department of Labor (“Labor” or the “Department”)

responding to the court’s remand order in Chen v. Chao, 32 CIT __, 587 F. Supp. 2d 1292

(2008). Also before the court are a motion by defendant for a voluntary remand allowing Labor

to reconsider the negative determination in the Third Notice and reopen its investigation, and a

motion by plaintiffs for judgment on the agency record. Plaintiffs oppose defendant’s motion for
Court No. 06-00337                                                                           Page 2

a voluntary remand and instead seek an order directing the Department to certify them as eligible

for various trade adjustment assistance benefits. For the reasons stated herein, the court grants

defendant’s motion for a voluntary remand, grants plaintiffs’ motion for judgment on the agency

record to the extent that the motion seeks to have the Department’s Third Notice set aside, and

denies plaintiffs’ motion to the extent that the motion seeks an order directing an affirmative

finding of eligibility.

                                         I. BACKGROUND

        Plaintiffs Bao Zhu Chen, Mei Yun Zheng, and Connie Chen (collectively, “plaintiffs”)

are three former employees of Advanced Electronics, Inc. (“Advanced Electronics,” the

“Company,” or the “subject firm”), a company that previously manufactured printed circuit

boards in Boston, Massachussetts. Plaintiffs sought adjustment assistance benefits under the

Trade Adjustment Assistance (“TAA”) and Alternative Trade Adjustment Assistance (“ATAA”)

programs administered under Title II of the Trade Act of 1974, as amended, 19 U.S.C.

§§ 2271-2321, 2395 (Supp. V 2005). In Chen, the court concluded that the Department’s second

negative determination of eligibility, which the Department issued following the court’s grant of

its request for a voluntary remand, was not in compliance with law. Chen, 32 CIT at __, 587 F.

Supp. 2d at 1295, 1302. The court concluded that Labor’s investigation, which failed to

determine the cause of the Company’s loss of sales to a significant foreign customer, was

inadequate to determine, as required by 19 U.S.C. § 2272(a)(1) and (a)(2)(A), whether increased

imports of articles like or directly competitive with the Company’s printed circuit boards

occurred and contributed importantly to the decline in the Company’s sales or production and to

plaintiffs’ separation from employment. Id. at __, 587 F. Supp. 2d at 1302. The court directed
Court No. 06-00337                                                                             Page 3

the Department to issue a new determination on the issue of plaintiffs’ eligibility to be certified

for TAA and ATAA benefits that is supported by substantial evidence and in accordance with

law. Id. Specifically, the court ordered the Department to reopen its investigation and the

administrative record and to attempt in the reopened investigation to determine whether, and to

what extent, an increase in imports into the United States of articles like or directly competitive

with the Company’s printed circuit boards caused the Company to lose business from its foreign

customer. Id.

       The Department, in the Third Notice, once again determined that plaintiffs are not eligible

for benefits under the TAA and ATAA, concluding that plaintiffs did not meet the statutory

eligibility requirements of 19 U.S.C. § 2272(a)(1) and (a)(2)(A). Third Notice 4-6. Based on its

post-remand investigation of the foreign customer, the Department found that “while the foreign

customer did switch its order from the subject firm to another domestic vendor, the domestic

vendor that replaced the subject firm did not import into the United States any of the printed

circuit boards it sold to the subject firm’s foreign customer.” Id. at 6. The Department

proceeded to conclude that plaintiffs’ separation from employment at Advanced Electronics was

not attributable to increases in imports of like products “[b]ecause there was no finding of

increased imports of article[s] like or directly competitive with the printed circuit boards

produced by the subject firm.” Id. at 6.

                                           II. DISCUSSION

       Plaintiffs’ motion for judgment on the agency record contests the negative determination

announced in the Third Notice, arguing that the Department did not conduct an investigation

adequate to satisfy the court’s previous remand order and that the negative determination is based
Court No. 06-00337                                                                             Page 4

on insubstantial evidence. Pls.’ Mot. for J. on the Admin. R. 1-2. Plaintiffs support this motion

by pointing out that the foreign customer relied on two separate suppliers to replace the

purchases of printed circuit boards previously made from Advanced Electronics and objecting

that the Department’s analysis, as set forth in the Third Notice, addresses only one such supplier.

Pls.’ Resp. to Def.’s Third Notice of Negative Determination in Supp. of Mot. for J. on the

Admin. R. 4 (“Pls.’ Br.”). Plaintiffs assert that one of the two suppliers that replaced Advanced

Electronics denied doing business with the foreign customer and fault the Department for not

reconciling the alleged denial with the foreign customer’s claim that it had dealt with this

supplier. See Def.’s Mot. for Voluntary Remand 5-6 (summarizing plaintiffs’ arguments).

Plaintiffs contend that the Department’s investigation of both replacement suppliers was

inadequate in failing to address the issue of whether the suppliers acted as reexporters of

imported printed circuit boards. See id. at 6. Arguing that further remand to the Department

would be futile, plaintiffs seek an order compelling the Department to certify all workers laid off

from Advanced Electronics “on or about September, 2005.” Pls.’ Br. 1, 5-6.

       In its motion for a voluntary remand, defendant states that the Department would reopen

the administrative record, conduct further investigation to resolve outstanding issues, reconsider

its negative determination, and issue a redetermination as to whether plaintiffs are eligible for

worker adjustment assistance benefits under the TAA and ATAA. Def.’s Mot. for Voluntary

Remand 6-7, Attach. 1. In particular, defendant seeks a remand so that the Department can

“clarify the relationship between the foreign customer and the first supplier and further

investigate any reexport activity by the first supplier.” Id. at 6. Defendant also states that it seeks

a remand to allow the Department “to further investigate the second supplier’s sales to the
Court No. 06-00337                                                                          Page 5

foreign customer and the second supplier’s import and/or reexport of printed circuit boards.” Id.

According to defendant, “remand would not be futile because it would permit Labor to clarify the

responses it received from the first supplier and receive and evaluate responses from the second

supplier.” Id. Defendant states that the remand would result in either “the certification of the

workers; or . . . a reaffirmation of Labor’s previous determination accompanied by more detailed

factual and/or legal analysis in support of the determination.” Id.

       In opposing defendant’s motion for voluntary remand, plaintiffs argue that the

Department already has had three opportunities to investigate whether plaintiffs are eligible for

TAA benefits and “has failed once again to ascertain the information necessary to determine

whether increased imports contributed importantly to the employees’ separation.” Pls.’ Opp’n to

Def.’s Mot. for Voluntary Remand 2 (“Pls.’ Opp’n to Voluntary Remand”). Relying on Former

Employees of Hawkins Oil and Gas, Inc. v. United States Secretary of Labor, 17 CIT 126, 129,

814 F. Supp. 1111, 1115 (1993) (“Hawkins”) and United Electrical, Radio and Machine Workers

of America v. Martin, 15 CIT 299 (1991) (“United Electrical, Radio and Machine Workers”),

plaintiffs advocate that the court order the Department to certify them for TAA and ATAA

benefits. Id.

       In SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001), the Court of

Appeals for the Federal Circuit (“Court of Appeals”) discussed the appropriate standard of

review to apply to an agency’s motion for voluntary remand of an administrative determination.

Therein, the Court of Appeals addressed the various types of voluntary remand situations that

could arise. See SKF USA Inc., 254 F.3d at 1027-30. The Court of Appeals opined that a

reviewing court has discretion over whether to remand where, as here, there are no “intervening
Court No. 06-00337                                                                           Page 6

events,” i.e., legal decisions that would affect the outcome of the agency’s determination, but the

agency nonetheless requests “a remand (without confessing error) in order to reconsider its

previous position.” Id. at 1028-29. The Court of Appeals further noted that remand is generally

appropriate under such circumstances “if the agency’s concern is substantial and legitimate” but

may be refused “if the agency’s request is frivolous or in bad faith.” Id. at 1029.

       In Chen, the court ordered the Department to conduct an investigation to determine

whether, and to what extent, an increase in imports into the United States of articles like or

directly competitive with the Company’s printed circuit boards caused Advanced Electronics to

lose business from its foreign customer. See Chen, 32 CIT at __, 587 F. Supp. 2d at 1302. Thus

far, Labor has gathered information as to which companies replaced Advanced Electronics as

suppliers of printed circuit boards to the foreign customer, as well as some information

concerning the manufacturing practices of one of those suppliers. See Def.’s Mot. for Voluntary

Remand 4-5. The Department now sees the need to “clarify the relationship between the foreign

customer and the first supplier and further investigate any reexport activity by the first supplier”

and to “investigate the second supplier’s sales to the foreign customer and the second supplier’s

import and/or reexport of printed circuit boards.” Id. at 6. The court reasonably may infer from

the defendant’s motion that the Department does not consider the evidence obtained to date

sufficient to make the findings of fact necessary for determining whether the Company’s loss of

business from its foreign customer is attributable to increased imports of printed circuit boards

into the United States. The Department appears to consider a remand necessary to its attempt to

obtain the information it needs to make such findings. For these reasons, defendant’s concern in
Court No. 06-00337                                                                            Page 7

requesting another remand must be seen as “substantial and legitimate,” see SKF USA Inc., 254

F.3d at 1029, and the court will grant defendant’s motion.

       On remand, the Department must attempt to obtain evidence sufficient to make the

necessary findings of fact with respect to the business relationships that existed, during the

relevant time period, between the foreign customer and the suppliers of printed circuit boards that

replaced Advanced Electronics. Specifically, the Department must seek to obtain evidence

sufficient to make findings of fact on whether these suppliers imported and then reexported the

printed circuit boards sold to the foreign customer during that time period. The Department must

then, based on the evidence gathered and the findings of fact made, determine whether, and to

what extent, an increase in imports into the United States of articles like or directly competitive

with Advanced Electronics’ printed circuit boards caused Advanced Electronics to lose the

business of its foreign customer. See Chen, 32 CIT at __, 587 F. Supp. 2d at 1302.

       The court is unconvinced by plaintiffs’ arguments opposing a voluntary remand. In

basing their argument on missing findings pertaining to the suppliers of the foreign customer,

plaintiffs essentially concede that the investigation is not complete. See Pls.’ Br. 2-6. Plaintiffs

nonetheless would have the court direct the Department to certify their eligibility. See Pls.’

Br. 5-6; see also Pls.’ Opp’n to Voluntary Remand 2. Moreover, defendant’s motion for a

voluntary remand would address the very objections that plaintiffs raise to the negative

determination in the Third Notice. Def.’s Mot. for Voluntary Remand 5-7. In addition, the fact

that the case has been remanded twice does not by itself render the defendant’s motion for a

voluntary remand frivolous or in bad faith. The court notes, in this regard, that Labor has had
Court No. 06-00337                                                                           Page 8

only one opportunity thus far to correct the error identified by the court in Chen. See Chen, 32

CIT at __, 587 F. Supp. 2d at 1302.

       Contrary to plaintiffs’ argument relying on certain decisions of the Court of International

Trade, the court declines to order the Department to certify the eligibility of plaintiffs for TAA

and ATAA benefits. See Pls.’ Opp’n to Voluntary Remand 2 (citing Hawkins, 17 CIT at 129,

814 F. Supp. at 1115 and United Electrical, Radio and Machine Workers, 15 CIT 299). The

facts in those cases are not analogous to the facts presented here.

       In Hawkins, the Court ordered the Department to certify for TAA benefits a group of

workers separated from an Oklahoma producer of oil and natural gas following a review of

Labor’s third determination denying eligibility. Hawkins, 17 CIT at 127, 130-131, 814 F. Supp.

at 1113, 1115. Because the “investigation put forth by Labor was once again the product of

laziness which as a result yielded a sloppy and inadequate investigation” and because “Labor

ha[d] repeatedly ignored the Court’s instructions to conduct a more thorough investigation,” the

Court concluded that “ordering another remand in this case would be futile.” Id. at 130, 814

F. Supp. at 1115. Therefore, the Court was “faced with no alternative other than to certify

plaintiff as eligible for trade adjustment assistance.” Id. at 130-131, 814 F. Supp. at 1115. The

procedural history of this case is distinguishable from that of Hawkins in that the court cannot

conclude that an additional remand would be futile. Labor has not ignored the court’s opinion

and order in Chen and, since the issuance of that opinion and order, has gathered some additional

information necessary to complete its investigation. See Def.’s Mot. for Voluntary Remand 4-5.

The Department’s demonstrated willingness to seek specific additional evidence refutes an
Court No. 06-00337                                                                            Page 9

inference that the court has no alternative but to order the Department to certify plaintiffs as

eligible for benefits under the TAA and ATAA.

       United Electrical, Radio and Machine Workers is also inapposite. In that case, the Court

of International Trade ordered the Department, following review of the Department’s fifth

determination, to certify the workers of an entire Pennsylvania plant that produced railway

systems. United Electrical, Radio and Machine Workers, 15 CIT at 300-301, 308. The

Department’s fifth determination had certified the workers of only three sections of the plant. Id.

at 300-301. The Court ordered certification of all workers at the plant, explaining that “[d]ue to

the Secretary’s repeated failure to conduct an adequate investigation, the documentation which

would have resolved the pending questions is no longer available, and memories are stale.” Id.

at 308. The Court reasoned that the workers of the plant “must not be penalized for this” and

stated that “the only just action to take now is to certify the entire plant” even though doing so

“will likely involve more workers than would have been certified had Labor followed proper

procedures initially.” Id. In contrast, the administrative record in this case does not support a

conclusion that information once available has been lost due to repeated failures to conduct an

adequate investigation.

                                  III. CONCLUSION AND ORDER

       The court concludes that a reopening of the investigation through a remand to the

Department of the determination in the Third Notice is appropriate in the circumstances of this

case. Based on the court’s review of all submissions made herein, and upon due deliberation, it

is hereby
Court No. 06-00337                                                                         Page 10

       ORDERED that Defendant’s Motion for Voluntary Remand, as filed on June 8, 2009,
be, and hereby is, GRANTED; it is further

         ORDERED that Plaintiffs’ Motion for Judgment on the Administrative Record, as filed
on May 4, 2009, be, and hereby is, granted to the extent that it seeks to have set aside the
Department’s Notice of Negative Determination On Remand, as filed on February 24, 2009, and
DENIED to the extent that this motion seeks a court order for an affirmative determination of
eligibility; it is further

        ORDERED that the Department’s Notice of Negative Determination On Remand, as
filed on February 24, 2009, be, and hereby is, set aside, and that this matter is hereby remanded
to the Department for further proceedings consistent with this Opinion and Order; it is further

         ORDERED that the Department shall issue a new determination on the issue of
plaintiffs’ eligibility for TAA and ATAA benefits that complies with this Opinion and Order,
that is supported by substantial evidence, and that is in accordance with law; it is further

        ORDERED that the Department shall reopen its investigation and the administrative
record in this proceeding and shall attempt in the reopened investigation to determine whether,
and to what extent, an increase in imports into the United States of articles like or directly
competitive with the Company’s printed circuit boards caused the Company to lose business
from its foreign customer; it is further

        ORDERED that the Department shall have sixty (60) days from the date of this Opinion
and Order to file its new determination upon remand in this proceeding and that plaintiffs shall
have thirty (30) days from the filing of the new determination to file comments thereon with the
court; and it is further

       ORDERED that Hilda L. Solis, Secretary, United States Department of Labor, be, and
hereby is, substituted, pursuant to USCIT Rule 25(d)(1), as party defendant for Elaine L. Chao,
former Secretary, United States Department of Labor.



                                                     /s/ Timothy C. Stanceu
                                                     Timothy C. Stanceu
                                                     Judge

Dated: July 16, 2009
       New York, New York
