Developments during 2009 concerning 28 U.S.C. s. 1581(d) and (g) and 28 U.S.C. s. 1582(l).

TABLE OF CONTENTS

INTRODUCTION
I. CASES DECIDED PURSUANT To 28 U.S.C. [section] 1581(D)
   A. Cases Involving The Department Of Labor
      1. United Steel, Paper & Forestry, Rubber,
        Manufacturing, Energy, Allied Industrial & Service
        Workers International Union, Local 2911 v. United
        States Secretary of Labor
      2. Former Employees of Invista, S.A.R.L. v. United States
        Secretary of Labor
      3. Former Employees of Warp Processing Co. v. United
        States Department Of Labor
      4. Chen v. Solis
      5. Former Employees of Hutchinson Technology, Inc. v.
        United States
      6. Former Employees of Honeywell International, Inc. v.
        United States Department of Labor
   B. Cases Involving The Department Of Agriculture
      1. Dorsey v. United States Secretary of Agriculture
      2. Hacker v. United States Secretary of Agriculture
II. CASES DECIDED PURSUANT TO 28 U.S.C. [section] 1581(G)
   A. Depersia v. United States
III. CASES DECIDED PURSUANT To 28 U.S.C. [section] 1582
   A. United States v. Scotia Pharmaceuticals, Ltd
   B. United States v. T.J. Manalo, Inc
   C. United States v. Rodrigue
CONCLUSION

INTRODUCTION

In 2009, the United States Court of International Trade ("CIT") decided eight cases brought pursuant to 28 U.S.C. [section] 1581 (d), relating to the respective trade adjustment assistance ("TAA") programs administered by the Department of Labor ("Labor") and the Department of Agriculture ("USDA"). With one exception, none of the cases addressed disputed jurisdictional issues relating to the scope of [section] 1581 (d). Instead, in these cases, the court addressed substantive factual and legal issues in resolving the cases upon the merits. Taken as a whole, there was an interesting distinction between the court's focus in deciding the cases involving the Department of Labor and its focus in deciding cases involving the Department of Agriculture. Regarding the six cases involving Labor's TAA decisions, the cases largely turned upon questions of substantial evidence and Labor's procedures as applied to the unique facts of individual cases. Legal holdings of broad applicability were rare. Many of the cases reviewed involved multiple remands and, in many instances, the thoroughness of Labor's investigations were criticized by the court--even in cases that were ultimately decided in favor of the Government. In contrast, both of the USDA TAA cases turned not upon the facts, but upon the resolution of a discrete legal issue regarding the determination of "net farm income" for the purposes of establishing the statutory eligibility requirements for agricultural TAA. The way this issue was resolved in these cases appeared to create a conflict (although only one of the CIT decisions was published), however, in a very recent precedential decision that affirmed the CIT's decision in one of the two cases, the United States Court of Appeals for the Federal Circuit ("Federal Circuit") largely resolved that conflict.

Historically, the CIT has decided a relatively small number of cases brought pursuant to 28 U.S.C. [section] 1581 (g). In the single 2009 case that involved that jurisdictional provision, the court, in dismissing an aggrieved applicant's challenge to a question on the customs broker license examination, reaffirmed prior precedent regarding the limited and highly deferential review of examination questions, while at the same time demonstrating that this standard of review will nonetheless still involve a careful consideration of asserted ambiguities and other deficiencies in the exam.

Finally, the court's decisions in three customs enforcement cases filed by the United States, pursuant to 28 U.S.C. [section] 1582, were notable in that the decisions did not turn upon jurisdictional issues or issues of substantive customs law, but rather upon basic issues of civil procedure, such as extensions of time for making service of process under Rule 4(1) of the Rules of the United States Court of International Trade ("USCIT R."), motions for voluntary dismissal pursuant to USCIT R. 41 (a) (2), and adequacy of pleading under USCIT R. 8. Although two of these [section] 1582 cases resulted in published decisions, it is unlikely that they significantly contributed to the development of the law.

As suggested by the title, the larger organizational structure of this Article follows from the particular statutory provisions upon which the CIT asserted jurisdiction in the cases discussed in the Article. Part I covers TAA cases decided by the CIT pursuant to its [section] 1581 (d) jurisdiction. Subpart I-A provides a short general overview of the TAA programs administered by Labor and the 2009 developments in the law relating to Labor TAA, followed by individual summaries of the 2009 Labor TAA cases. (1) Subpart I-B is organized in the same manner as subpart I-A, but relates to the TAA program administered by the USDA. Part II provides a short overview of the CIT's [section] 1581 (g) jurisdiction as it relates to cases involving the customs broker license examination, followed by a summary of the sole 2009 case decided pursuant to this jurisdictional provision. Part III provides a short overview of 2009 developments relating to cases filed by the Government pursuant to [section] 1582, followed by individual case summaries.

I. CASES DECIDED PURSUANT TO 28 U.S.C. [section] 1581(D)

Pursuant to 28 U.S.C. [section] 1581 (d), the CIT possesses exclusive jurisdiction to entertain challenges to agency decisions regarding certain types of TAA. Specifically, [section] 1581 (d) provides jurisdiction over

   any civil action commenced to review--(1) any final determination
   of the Secretary of Labor under section 223 of the Trade Act of
   1974 with respect to the eligibility of workers for adjustment
   assistance under such Act; (2) any final determination of the
   Secretary of Commerce under section 251 of the Trade Act of 1974
   with respect to the eligibility of a firm for adjustment assistance
   under such Act; (3) any final determination of the Secretary of
   Commerce under section 273 of the Trade Act of 1974 with respect to
   the eligibility of a community for adjustment assistance under such
   Act; and (4) any final determination
   of the Secretary of Agriculture under section 293 or 296 of the
   Trade Act of 1974 with respect to the eligibility of a group of
   agricultural commodity producers for adjustment assistance under
   such Act. (2)

The court decided eight [section] 1581(d) TAA cases involving the Department of Labor and the Department of Agriculture in 2009.

A. Cases Involving The Department Of Labor

TAA and Alternative Trade Adjustment Assistance ("ATAA") are Government programs designed to assist workers who have become unemployed due to the effects of international trade. (3) The goal of these programs is to help trade-affected workers quickly reenter the workforce. (4)

The TAA program provides assistance to workers who have lost their jobs due to increased imports or shifts in production to a foreign country. (5) Under the statute, workers are eligible for certification if the Department of Labor ("Labor") determines that (i) "a significant number or proportion of the workers in such workers' firm have become totally or partially separated" from employment and (ii) one of two other provisions is satisfied. (6)

The first TAA provision, [section] 2272(a)(2)(A), applies to circumstances in which there has been an increase in imports and a decrease in sales or production at the company from which the workers were laid off. Workers qualify for TAA under this provision if (a) "imports of articles like or directly competitive with" the articles produced by the firm in question increased and (b) those imports "contributed importantly" both to an absolute decrease in sales or production at the firm in question and to the separation or threat of separation of the workers. (7)

The second TAA provision, [section] 2272(a)(2)(B), applies when there has been a shift in production overseas. Pursuant to the second provision, workers qualify for TAA benefits it (a) "there has been a shift ... to a foreign country ... of articles ... like or directly competitive with" the articles produced by the workers seeking certification and (b) either the country in question is party to a free trade agreement 0r imports of articles like or directly competitive with those produced by the workers have increased. (8)

The ATAA program was created specifically for older TAA-certified workers for whom retraining may not be appropriate. The program provides a wage subsidy for such workers who quickly obtain reemployment at a lower wage than what they previously earned. (9) In order for a worker to qualify for ATAA benefits, the worker must be individually certified as ATAA-eligible. (10)

Pursuant to 19 U.S.C. [section] 2395(b), the findings of fact of the Department of Labor are to be sustained if they are "supported by substantial evidence." (11) This deferential standard of review ordinarily leaves little room for the court to second-guess reasonable agency decisions. However, as the 2009 decisions illustrate, the court has generally insisted that Labor conduct its investigations thoroughly and "with the utmost regard for the interests of the petitioning workers." (12) The court closely scrutinized Labor's investigations, including the reasonableness of Labor's reliance upon information that it received from the former employer of the petitioning workers and from third parties, and routinely remanded cases for further investigation. (13) In some of the cases, Labor's further inquiry into the facts, as instructed by the court in an involuntary remand, resulted in Labor's reversal of its prior denial of TAA certification. (14) Even in those cases in which the court ultimately sustained Labor's denial of TAA certification, the court's final decision upon the merits often carne only after Labor had conducted additional inquiries pursuant to voluntary and/or involuntary remands. (15)

For the most part, the Labor TAA cases decided in 2009 turned upon questions of substantial evidence and Labor's investigation procedures as applied to the unique facts presented in the individual cases. The court's resolution of legal issues of broad applicability were rare. However, there were some arguably conflicting statements regarding the extent to which Labor is required to investigate, sua sponte, issues not articulated by the petitioning workers. In one decision, the court stated that Labor "cannot limit its investigation of a TAA/ATAA petition solely to the petitioning workers' express claims," (16) while, in another decision, the court held that Labor "must have some reason to know" (17) the basis upon which the workers desire to be certified, and sustained Labor's negative determination, concluding that Labor was not required to explicitly address (in a remand determination) a basis for certification that was not raised. In addition, although real or perceived deficiencies in Labor's investigations may often result in remands, in one unpublished. 2009 case the court rejected an argument that the court direct labor to certify the petitioning workers rather than grant Labor's request for a third remand. (18)

Issues of law related to the scope of the substantive TAA eligibility requirements were not often in issue, however, in one precedential decision the court addressed a legal dispute regarding the interpretation of 29 C.F.R. [section] 90.2 (defining when an imported article is directly competitive with a domestic article at an earlier or later stage of processing) and its applicability in a case involving workers manufacturing components of computer hard drives. (19)

1. United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, Local 2911 v. United States Secretary of Labor

In a non-precedential decision in United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union, Local 2911 v. United States Secretary of Labor, (20) the court upheld Labor's determination that workers separated from Weirton Steel Corporation ("Weirton") after its acquisition by International Steel Group ("ISG") were not eligible for TAA.

Weirton, a steel producer, was struggling due to increased steel imports. As a result, the Independent Steelworkers Union ("ISU") (21) petitioned Labor to certify Weirton's employees for TAA. Labor certified all Weirton employees for two years following the date of certification, in accordance with the statute. (22) Before the certification expired, however, Weirton filed for bankruptcy and sold substantially all of its assets to ISG.

ISU petitioned Labor to recertify the Weirton employees to cover the small number of workers kept on by Weirton …