                         Slip Op. 12 - 155

           UNITED STATES COURT OF INTERNATIONAL TRADE

 FORMER EMPLOYEES OF WESTERN
 DIGITAL TECHNOLOGIES, INC.,
                                         PUBLIC VERSION
           Plaintiffs,
                                         Before: Donald C. Pogue,
                                                 Chief Judge
                v.
                                         Court No.   11-00085
 U.S. SECRETARY OF LABOR,

           Defendant.


                               OPINION

[negative determination of eligibility to apply for trade
adjustment assistance affirmed]

                                             Dated: December 21, 2012

          James R. Cannon, Jr. and Thomas Beline, Cassidy Levy
Kent (USA) LLP, of Washington, DC, for the Plaintiffs.

          Antonia R. Soares, Trial Attorney, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice,
of Washington, DC, for the Defendant. With her on the brief
were Stuart F. Delery, Acting Assistant Attorney General, Jeanne
E. Davidson, Director, and Claudia Burke, Assistant Director.
Of counsel on the brief was Jonathan Hammer, Employment and
Training Legal Services, Office of the Solicitor, U.S.
Department of Labor.

          Pogue, Chief Judge:   Plaintiffs in this action are

former employees of Western Digital Technologies, Inc., Hard

Drive Development Engineering Group, Lake Forest, California.

The Plaintiffs seek review of a negative determination by the

United States Department of Labor regarding their eligibility

for benefits under the federal Trade Adjustment Assistance
Court No.    11-00085                                            Page 2


program.1    Plaintiffs petitioned for such benefits on behalf of

workers at their firm who, prior to the termination of their

employment in late 2008 to early 2009, were engaged in the

supply of engineering functions for the development of hard disk

drives. See Negative Determination on Remand, 76 Fed. Reg. at

61,746-47.

             The court has jurisdiction pursuant to 28 U.S.C.

§ 1581(d)(1) (2006).    As explained below, because the agency’s

negative determination is supported by a reasonable reading of

the administrative record, the determination will be affirmed.



                              BACKGROUND

             The Employment and Training Administration of the

Department of Labor (“Labor”) will certify a group of workers as
																																																								
              1
                  See Notice of Determinations Regarding Eligibility to
Apply for Worker Adjustment Assistance, 75 Fed. Reg. 51,846,
51,849 (Dep’t Labor Aug. 23, 2010) (“Negative Determination”),
aff’d on reconsideration, Western Digital Technologies, Inc.,
Co[r]porate Headqua[r]ters/Hard Drive Development Division, Lake
Forest, CA, 76 Fed. Reg. 10,403, 10,403 (Dep’t Labor Feb. 24,
2011) (notice of negative determination on reconsideration)
(“Negative Determination on Reconsideration”), aff’d on remand,
Western Digital Technologies, Inc.: Hard Drive Development
Engineering Group Irvine (Formerly at Lake Forest), CA, 76 Fed.
Reg. 61,746, 61,747 (Dep’t Labor Oct. 5, 2011) (notice of
negative determination on remand) (“Negative Determination on
Remand”), aff’d on 2d remand, Western Digital Technologies,
Inc., Hard Drive Development Engineering Group Irvine (Formerly
at Lake Forest), CA, 77 Fed. Reg. 8284, 8287 (Dep’t Labor
Feb. 14, 2012) (notice of negative determination on remand)
(“Negative Determination on Second Remand”).
Court No.   11-00085                                                 Page 3


eligible to apply for trade adjustment assistance (“TAA”),2

pursuant to a petition filed under the Trade Act of 1974, if the

agency determines that the workers meet the eligibility criteria

set out in 19 U.S.C. § 2272. 19 U.S.C. § 2272 (Supp. III 2009).3

Section 2272 provides that the primary TAA eligibility criteria4

are met if a “significant number or proportion” of a U.S. firm’s

workers have been or are threatened to be “totally or partially

separated,” and either increased imports5 or a shift abroad of


																																																								
              2
                  TAA benefits include unemployment compensation, training,
job search and relocation allowances, and other employment
services. Former Emps. of Kleinerts, Inc. v. Herman, 23 CIT 647,
647, 74 F. Supp. 2d 1280, 1282 (1999); see 19 U.S.C. §§ 2295–98
(2006).
     3
       Plaintiffs’ petition, numbered TA-W-72,949, Compl.,
ECF Nos. 1 & 2, at ¶ c, is governed by the Trade and
Globalization Adjustment Assistance Act of 2009, 19 U.S.C.
§§ 2252-2401g (Supp. III 2009). See Emp’t & Training Admin.,
U.S. Dep’t of Labor, Trade Adjustment Assistance for Workers
(comparison of benefits by petition number), available at
http://www.doleta.gov/tradeact/pdf/side-by-side.pdf (last
visited Dec. 20, 2012). Unless otherwise noted, further
citation to Title 19 of the U.S. Code is to Supplement III
(2009) of the 2006 edition.
     4
       Section 2272 additionally provides that, subject to
certain conditions, “adversely affected secondary workers” –
upstream suppliers or downstream producers of TAA-certified
firms – may also be eligible for TAA benefits. 19 U.S.C.
§ 2272(c). Plaintiffs do not claim to be covered by this
subsection.
     5
       See 19 U.S.C. § 2272(a)(2)(A) (providing that TAA
eligibility criteria are met if (i) the sales and/or production
of the laying off firm have decreased absolutely; and (ii) there
has been a concurrent increase in imports of articles or
services “like or directly competitive with” those produced by
                                             (footnote continued)
Court No.                     11-00085                                                                                                                           Page 4


production or services6 “contributed importantly” to the layoffs.

See 19 U.S.C. § 2272(a); see also Former Emps. of Se. Airlines

v. U.S. Sec’y of Labor, __ CIT __, 774 F. Supp. 2d 1333, 1336

(2011) (“The Trade Act provides for TAA benefits to workers who

have been completely displaced as a result of increased imports

into, or shifts of production out of, the United States.”)

(citing 19 U.S.C. § 2272).

                           After investigating Plaintiffs’ petition for TAA

certification, Labor issued a negative determination, finding

that TAA eligibility criteria had not been met. Negative


																																																																																																																																																																																			
the laying off firm, or articles like or directly competitive
with articles “into which one or more component parts produced
by the firm are directly incorporated” or which are “produced
directly using services supplied by such firm”, or “articles
directly incorporating one or more component parts produced
outside the United States that are like or directly competitive
with imports of articles incorporating one or more component
parts produced by [the laying off] firm”; and (iii) “the
increase in imports described in clause (ii) contributed
importantly to [the] workers’ separation or threat of separation
and to the decline in the sales or production of such firm”).
             6
       See 19 U.S.C. § 2272(a)(2)(B) (providing that TAA
eligibility criteria are met if (i) “there has been a shift by
such workers’ firm to a foreign country in the production of
articles or the supply of services like or directly competitive
with articles which are produced or services which are supplied
by such firm; or such workers’ firm has acquired from a foreign
country articles or services that are like or directly
competitive with articles which are produced or services which
are supplied by such firm,” and (ii) the shift or acquisition of
articles or services described in clause (i) “contributed
importantly to such workers’ separation or threat of
separation”).
Court No.   11-00085                                              Page 5


Determination, 75 Fed. Reg. at 51,849.      Labor affirmed its

Negative Determination after conducting additional

investigations – first in the course of an administrative

proceeding for reconsideration, then in the course of two

voluntary remand proceedings subsequent to commencement of this

action.7

            In response to Labor’s inquiry, the subject firm

explained that the Plaintiffs’ termination was due to a cost-

cutting effort and was not in any way attributable to an

increase in imports or a shifting abroad of any production or

services. See Supplemental Admin. R., ECF No. 22 (“SAR”) at 27.

Labor’s investigations revealed that the subject firm designs

new hard drive products in the United States and mass produces

those hard drives in Asia, employing U.S.-based hard drive

engineers such as Plaintiffs to work as part of the design

process and foreign-based engineers to work as part of the

manufacturing process. See SAR at 30-32.       Before the design is


																																																								
              7
                  See supra note 1. Labor explained that, in addition to
obtaining supplementary information from the subject firm and
soliciting new input from the Plaintiffs, each supplementary
investigation confirmed all previously collected information and
addressed all of Plaintiffs’ allegations, without altering
Labor’s conclusion that the TAA eligibility criteria had not
been met. See Negative Determination on Reconsideration, 76 Fed.
Reg. at 10,403; Negative Determination on Remand, 76 Fed. Reg.
at 61,747; Negative Determination on Second Remand, 77 Fed. Reg.
at 8286-87.
Court No.         11-00085                                         Page 6


approved for mass production, however, the subject firm

manufactures prototype hard drives, sometimes in the U.S. and

sometimes abroad,8 to ensure that the new designs are functional.

SAR at 11.         Although prototypes are produced for internal

product-development purposes, the subject firm sells a portion

of its prototypes after they have been tested. Id.         Because the

subject firm considers the creation of a prototype drive to be a

necessary step in the process of designing hard drives, and

because the firm considers the design of new hard drives to be

the “primary function” of all of its U.S.-based hard disk drive

engineers, Plaintiffs’ work at the subject firm was related to

the firm’s domestic production of hard drive prototypes. See id.

at 22.       However, the subject firm stated that no portion of the

firm’s domestic production of prototype drives shifted abroad

during the relevant time frame. Id. at 23.

                Labor found that “U.S. aggregate imports of articles

like or directly competitive with hard disk drives declined in

the relevant time period.” Negative Determination on Remand,

76 Fed. Reg. at 61,746 (citations to record omitted);

see 19 U.S.C. § 2272(a)(2)(A)(ii) (requiring an increase in like

or directly competitive imports for TAA eligibility pursuant to
																																																								
              8
                  The firm explained that [[“

                                                            ”]] SAR
at 22.
Court No.   11-00085                                          Page 7


part (A) of § 2272(a)(2)).   In addition, Labor concluded that

Plaintiffs’ separation from the subject firm was not

attributable to any shift of their work abroad. Negative

Determination on Remand, 76 Fed. Reg. at 61,747; see 19 U.S.C.

§ 2272(a)(2)(B) (requiring a shift to or acquisition from abroad

of relevant articles or services for TAA eligibility pursuant to

part (B) of § 2272(a)(2)).   The agency based this conclusion on

its finding that the work of the engineers employed by the firm

abroad, as part of the manufacturing process, was not like or

directly competitive with the services supplied by U.S.-based

engineers like Plaintiffs, who were employed as part of the

design process. See Negative Determination on Remand, 76 Fed.

Reg. at 61,747 (“Because of the stage of production at which the

functions are performed, the work performed by the engineers

domestically and the engineers abroad is not interchangeable.”)

(citations to record omitted); Negative Determination on Second

Remand, 77 Fed. Reg. at 8287 (“Upon review of the facts

collected during the earlier investigations and the additional

information procured through the second remand investigation,

[Labor] has determined that the services provided by engineers

at the subject firm’s Asian facilities are not like or directly

competitive with the services of the engineers located at the

subject facility.”); 19 U.S.C. § 2272(a)(2)(B) (requiring a

shift to or acquisition from abroad of articles or services
Court No.   11-00085                                         Page 8


“like or directly competitive with” those produced or supplied

by the firm domestically).   Accordingly, the agency affirmed its

original negative determination regarding Plaintiffs’

eligibility to apply for trade adjustment assistance. Negative

Determination on Second Remand, 77 Fed. Reg. at 8287.

            Plaintiffs now challenge Labor’s Negative

Determination on Second Remand. See Cmts. of Pls. Former

Employees of Western Digital Technologies, Inc. Regarding the

Second Remand Results, ECF Nos. 39 (public) & 40 (confidential)

(“Pls.’ Br.”).



                         STANDARD OF REVIEW

            The Court will uphold Labor’s determination if it is

supported by substantial evidence on the record and is otherwise

in accordance with law. See 19 U.S.C. § 2395(b); Former Emps. of

Se. Airlines, __ CIT at __, 774 F. Supp. 2d at 1335.

Substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Former

Emps. of Barry Callebaut v. Chao, 357 F.3d 1377, 1380-81 (Fed.

Cir. 2004) (quoting Universal Camera Corp. v. NLRB, 340 U.S.

474, 477 (1951)).   “The reviewing court must take into account

contradictory evidence in the record, but the possibility of

drawing two inconsistent conclusions from the evidence does not

prevent an administrative agency’s finding from being supported
Court No.   11-00085                                           Page 9


by substantial evidence.” Am. Textile Mfrs. Inst., Inc. v.

Donovan, 452 U.S. 490, 523 (1981) (internal quotation marks and

citations omitted).



                             DISCUSSION

            At issue is Labor’s determination that TAA eligibility

requirements were not met because neither increased imports nor

shifts of production or services abroad contributed importantly

to Plaintiffs’ separation from the subject firm. Negative

Determination on Reconsideration, 76 Fed. Reg. at 10,403.      In

making this determination, Labor gave credence to the company’s

explanation that the termination of Plaintiffs’ employment,

which was announced in December of 2008, was part of a cost-

cutting effort in response to a global economic downturn.

See SAR at 27-31.   In the course of its investigation, which

included three follow-up inquiries, Labor found no evidence to

support Plaintiffs’ claims to the contrary. See Negative

Determination on Second Remand, 77 Fed. Reg. at 8287.   In

particular, Labor found no evidence to substantiate Plaintiffs’

claim that their separation was due to a shift abroad of the

work that Plaintiffs had performed in the United States. Id.

            In challenging Labor’s Negative Determination on

Second Remand, Plaintiffs reiterate their claim that their

separation was due to a shift abroad of the work that they had
Court No.   11-00085                                                   Page 10


performed domestically. Pls.’ Br. at 9-13.9         Plaintiffs claim

that Labor’s finding that the separation was not attributable to

such a shift is not supported by substantial evidence. Id.              In

support of this argument, Plaintiffs challenge Labor’s

conclusion that because Plaintiffs’ work was not interchangeable

with the work of the engineers that the subject firm employed

abroad, changes in the workforce abroad could not have affected

Plaintiffs’ worker group, and therefore could not have

“contributed importantly” to the layoffs at issue. Id.;

see Negative Determination on Second Remand, 77 Fed. Reg.

at 8285; 19 U.S.C. § 2272(a)(2)(B).        Plaintiffs emphasize record

evidence that 1) the subject firm employs engineers in the

design and production of prototype hard drives both domestically

and abroad; and 2) the engineers employed abroad received

training from the domestic engineers, including some of the

Plaintiffs. See Pls.’ Br. at 10-11.

            As Labor explains, however, the conclusion that the

subject firm’s U.S.- and Asia-based engineers perform functions

that are not like or directly competitive with one another is

not inconsistent with the evidence emphasized by the Plaintiffs.



																																																								
              9
                  Plaintiffs do not offer a reading of the record to
contradict Labor’s conclusion that no increase in imports
contributed importantly to Plaintiffs’ separation from the
subject firm. See Pls.’ Br.
Court No.   11-00085                                         Page 11


See Negative Determination on Second Remand, 77 Fed. Reg. at

8285-87.

            With regard to training, the record reveals that the

subject firm’s business model is to design new products in the

United States and mass manufacture them abroad. Negative

Determination on Remand, 76 Fed. Reg. at 61,747.    Having worked

on the product’s design through the prototype stage, the

domestic engineers routinely provide training to the engineers

who will be overseeing the mass production abroad. See id.

(“[T]he firm states that the foreign engineers . . . must be

knowledgeable about the new products [that are developed

domestically] in order to carry out their [manufacturing-

related] work, so foreign engineers visit the United States to

train on the new products to oversee the production at the

manufacturing facilities.”).   Given this explanation, the

evidence of training that Plaintiffs emphasize does not compel

the conclusion that the work of the U.S.- and Asia-based

engineers is functionally interchangeable. Id. (“[T]he training

of foreign workers in the U.S. does not show that the roles of

the domestic [engineers] and engineers abroad are

interchangeable.”) (citations to record omitted).   That the

subject firm’s foreign (manufacturing) engineers appear

dependent on training provided by the domestic (design)

engineers reasonably supports Labor’s conclusion that the
Court No.    11-00085                                          Page 12


foreign engineers cannot function as substitutes for the firm’s

domestic engineers. See id. (“According to the subject firm, the

engineering work performed abroad not only requires the

engineers to be present at the manufacturing location, but is

also different and less complex than the development work

performed by the domestic engineers.”).10

            With regard to the firm’s design and production of

prototype drives abroad, the investigations revealed that the

nature of the company’s prototype production abroad – and

accordingly the function of the engineers employed in such

production – substantially differs from the company’s domestic

prototype production.11       Plaintiffs argue that the company’s

representations in this regard are contradicted by “numerous

exhibits [on record,] including job listings posted in Malaysia
																																																								
              10
                    Plaintiffs’ reliance on Elec. Data Sys. Corp., I
Solutions Ctr., Fairborn, Ohio, 71 Fed. Reg. 18,355 (Dep’t Labor
Apr. 11, 2006) (notice of revised determination on remand),
wherein Labor issued a positive determination of TAA eligibility
to former employees who showed that foreign-based workers had
been trained in the production of the same articles as those
produced by the former employees, id. at 18,356, is inapposite.
See Pls.’ Br. at 12-13. Unlike the workers in that case,
Plaintiffs have not shown here, and Labor’s investigations have
not revealed, that the training provided to foreign-based
engineers was substantively identical to that required to
perform Plaintiffs’ own duties and functions within the firm.
See Negative Determination on Remand, 76 Fed. Reg. at 61,747.
     11
          Specifically, [[“

                                             ”]] SAR at 22.
Court No.   11-00085                                           Page 13


by [the subject firm].” See Pls.’ Br. at 11.      But Labor

conducted a detailed analysis of all such exhibits and concluded

that, contrary to Plaintiffs’ assertions, this evidence is

consistent with the company’s representations, and the agency’s

ultimate conclusion, that the work of the U.S.-based engineers

is not like or directly competitive with that of the engineers

based abroad. Negative Determination on Second Remand, 77 Fed.

Reg. at 8285-87.

            Thus, for example, Labor noted that “according to the

position descriptions [of the Malaysian job listings submitted

by the Plaintiffs], none of the vacant positions involved the

design or development of hard disk drives.” Negative

Determination on Second Remand, 77 Fed. Reg. at 8286.12       Rather,

“careful examination of the duties listed for each position

establishes that the work of these engineers relates to




																																																								
              12
                    See also id. at 8286-87 (“Close examination of the
listings showed that only one position called for ‘co-develop
new product and channel feature with U.S. counterpart.’ In any
event, the position description does not specify that the ‘co-
development’ refers to hard disk drives. None of the other
positions listed call for development work of hard disk drives
or any other products. Also, out of the 17 listings, only three
contain the words ‘develop’ or ‘design’ and these three
positions call for the development and design of software and
code applications, not hard disk drives, which the subject firm
has ascertained is the function of the domestic engineers.”)
(citations to the record omitted).
Court No.   11-00085                                         Page 14


manufacturing.” Id. at 8286 (providing examples and citing to

the record).

            Plaintiffs also emphasize the record evidence that

“failure analysis” is performed by both domestic and foreign

engineers employed by the subject firm, arguing that this

evidence compels the conclusion that the foreign-based

engineering services are like or directly competitive with the

services provided by the domestic engineers. Pls.’ Br. at 12.

But the subject firm explained that the “failure analysis”

performed by the domestic engineers differs from the “failure

analysis” performed by the foreign-based engineers. SAR at 12.

Whereas the domestic engineers perform failure analysis at the

early prototype stages of product development, the foreign-based

engineers perform such analysis at the later stages of mass

production, prior to market release. Id.; see Negative

Determination on Second Remand, 77 Fed. Reg. at 8287 (addressing

Plaintiffs’ “failure analysis”-based argument and citing to the

record).    Accordingly, the record reasonably supports Labor’s

conclusion that the services provided by the subject firm’s

foreign-based engineers were not like or directly competitive

with those provided by the firm’s domestic engineers, including
Court No.   11-00085                                           Page 15


Plaintiffs,13 notwithstanding the evidence that both groups

perform some type of “failure analysis.” See Negative

Determination on Second Remand, 77 Fed. Reg. at 8287; SAR at 12.

            Plaintiffs suggest that the court should order Labor

to conduct a more thorough investigation. Pls.’ Br. at 15-22.

But while Plaintiffs appropriately emphasize Labor’s affirmative

obligation to investigate TAA claims “with the utmost regard for

the interests of the petitioning workers,”14 the agency’s

authority to act in the workers’ interests is cabined by the

statutory conditions for TAA eligibility. See 19 U.S.C.

§ 2272(a).15   Here, Labor has marshaled the relevant facts16 and


																																																								
              13
                    The court thus needs not, and so does not, address
Labor’s alternative conclusion that, to the extent that the
record could be read to suggest a relevant shift abroad of
production, the shift was negligible, and therefore could not
serve as a basis for TAA eligibility. See Negative Determination
on Second Remand, 77 Fed. Reg. at 8287.
     14
       Pls.’ Br. at 15 (quoting Former Emps. of Invista,
S.a.r.l. v. U.S. Sec’y of Labor, __ CIT __, 714 F. Supp. 2d
1320, 1336 (2010)); see Former Emps. of Invista, __ CIT at __,
714 F. Supp. 2d at 1329 (collecting cases).
     15
       See also Former Emps. of Invista, __ CIT at __, 714 F.
Supp. 2d at 1336 n.22 (citing United Glass & Ceramic Workers v.
Marshall, 584 F.2d 398, 400 (D.C. Cir. 1978) (quoting
legislative history explaining that job losses are not covered
by TAA if they “would have occurred regardless of the level of
imports, e.g., those resulting from domestic competition,
seasonal, cyclical, or technological factors”)).
     16
       See 29 C.F.R. § 90.12 (2009) (“In the course of any [TAA]
investigation, representatives of [Labor] shall be authorized to
contact and meet with responsible officials of firms, union
                                             (footnote continued)
Court No.                     11-00085                                                                                                                        Page 16


interpreted the evidence to conclude that the statutory

conditions for TAA eligibility have not been met.                                                                                          Labor has

addressed each of Plaintiffs’ claims with specific references to

the record, and Plaintiffs’ contention that more evidence is

required is essentially a disagreement with the agency regarding

the conclusions drawn from the record.17                                                                         As discussed above, the



																																																																																																																																																																																			
officials, employees, and any other persons, or organizations,
both private and public, as may be necessary to marshal all
relevant facts to make a determination on the petition.”).
             17
       Plaintiffs contend, for example, that the record of
Labor’s investigations is deficient because Labor’s conclusion
that Plaintiffs’ worker group did not provide the same services
as those performed by engineers in Asia was based on a sample of
services that “did not include the full range of engineering
services provided by the HDD group in the United States and in
Asia.” Pls.’ Br. at 17. But the record reveals that, “although
the [employees in the worker group represented by the
Plaintiffs] ha[d] different functions and belong[ed] to
separately identifiable worker groups, [each of these] workers
suppl[ied] services that [were] vertically integrated in the
production of hard disk drives . . . .” SAR at 29. Thus the
record reveals that Labor has already considered the various
subgroups within the larger worker group and determined that
this evidence is consistent with Labor’s analysis of this case.
     Plaintiffs also contend that the record remains incomplete
because it lacks evidence regarding prototype production in the
United States and Asia. Pls.’ Br. at 18-20. But the record does
contain information in this regard. See SAR at 23 ([[


                                    ]]), 38-39 (providing
Labor’s analysis of this information). In any event, the record
reasonably supports the conclusion that the firm’s domestic
prototype production significantly differs from the firm’s
prototype production abroad. See id. at 22 ([[“

                                                                                                                                         ”]]).
                                                                                                                           (footnote continued)
Court No.                     11-00085                                                                                                                        Page 17


record of Labor’s investigations contains sufficient evidence

for a reasonable mind to conclude, as the agency did, that

neither an increase in imports nor a shift abroad of production

or services contributed importantly to the separation of

Plaintiffs’ worker group from the subject firm.                                                                                       Moreover, also

as discussed, the record as a whole is reasonably consistent

with this conclusion.18                                           Accordingly, Labor’s determination that

Plaintiffs’ separation from the subject firm was due neither to

an increase in imports nor to a shift abroad of production or

services is supported by substantial evidence. See 19 U.S.C.

§ 2395(b).
																																																																																																																																																																																			
              Finally, Plaintiffs contend that the record is incomplete
because “[i]t is unclear from the record whether engineering
services were formerly provided by the [worker] group
[represented by the Plaintiffs] in support of wafer production
or domestic production of other components[,] [and] the record
[does not] contain information to determine whether such
functions were shifted to engineers in Asia.” Pls.’ Br. at 20-
21. But the existing record already sufficiently supports the
conclusion that Plaintiffs’ worker group was not involved in the
domestic production of wafers or other components, because such
components are designed by a separate group of engineers at a
different facility. SAR at 21.
             18
       Compare with Former Emps. of Invista, __ CIT at __,
714 F. Supp. 2d at 1329 (relied on in Pls.’ Br. at 15-16)
(“[T]he administrative record in this case was replete with
evidence supporting the Workers’ claim that their terminations
were attributable to . . . the 2004 shift of . . . production to
Mexico; and, moreover, . . . the evidence to the contrary
(including, in particular, the statement [relied on by the
agency]) was not only scant, but also weak.” (internal quotation
marks and citation omitted)) (awarding the plaintiffs attorneys’
fees and expenses, pursuant to the Equal Access to Justice Act).
Court No.   11-00085                                         Page 18




                             CONCLUSION

            For the reasons stated above, Labor’s Negative

Determination on Second Remand, 77 Fed. Reg. at 8287, is

affirmed.   Judgment will be entered accordingly.



                                       _____/s/ Donald C. Pogue____
                                       Donald C. Pogue, Chief Judge

Dated: December 21, 2012
       New York, NY
