Trade Adjustment Assistance Remand

 As we discussed in the last post, not a lot happens in Customs Law Land that has a direct impact on the livelihood of individuals. Usually, we are dealing with refunds or duties owed by companies. One area that does impact individuals is appeals of denied Trade Adjustment Assistance, which is the federal program that provides financial and other assistance to workers who are "separated from employment" due to trade. In other words, TAA addresses those who are on the short end of the globalization stick. TAA goes back to the Kennedy Administration and is the bargain we make with workers. Economists (notwithstanding Peter Navarro) largely agree that globalization leverages local comparative advantages to generate a net economic benefit. But, everyone can also see that not every individual within the economy realizes benefits from globalization. TAA helps those individuals "adjust" through enhanced unemployment benefits, training, and relocation. It is not a perfect solution, but there it is.

Communications Workers of America Local 4123 v. Secretary of Labor, is an example of judicial review of a TAA negative determination. In this case, the workers had been employed at call centers operated by AT&T in  the United States. The petitioners alleged that AT&T closed their call centers, laid off thousands of workers, and moved the operations to other countries. 

Labor conducted an initial investigation in which AT&T stated that it had consolidated the call centers into domestic facilities rather than having moved the functions overseas. AT&T further noted that all of the workers in the closing locations were offered the opportunity to relocate or to train for alternative positions. Labor sent follow up questions to AT&T's in-house counsel, who responded via email. 

Following that exchange, Labor made an initial negative determination, denying benefits. In the determination, Labor concluded that AT&T had not shifted the call center and related activity to overseas locations. Pursuant to a request from the petitioners, Labor reconsidered the determination. The redetermination affirmed the initial finding that AT&T had not shifted work to foreign countries.

The Court of International Trade will uphold a decision from the Department of Labor so long as that decision is supported by substantial evidence. "Substantial evidence" is a pretty deferential standard. In this context, "substantial" is more than a scintilla and a scintilla is not much; it means a small spark or flash, a barely perceptible amount. Legally, it means more than enough to create a suspicion as to some fact. On top of that, the decision cannot be arbitrary, capricious, or otherwise not in accordance with law. 

The problem for the Department of Labor is that its determination does not contain enough analysis to identify the scintillae on which it is allegedly based. Instead, the determination is a mere conclusion that AT&T officials confirmed that the work remained in the U.S. The Court was unsatisfied with this conclusion and remanded the decision back to Labor to explain the evidence that supports its acceptance of AT&T's position.

At the same time that Labor accepted AT&T's uncertified statements, it appears to have rejected the petitioners' evidence. Labor may not  ignore evidence on one side of the questions; it must take into consideration evidence that detracts from the weight of other evidence. Given that Labor failed to address the union's evidence, the Court remanded for additional explanation of the decision.

Another problem in this investigation is that Labor relied on a mix of certified and uncertified information from AT&T. Labor is entitled to rely on certified questionnaire responses. 19 USC 2272(d)(3)(A)(i). Any other information can be considered if Labor has a reasonable basis to believe that the information "is accurate and complete without being certified." Same. Nothing in the record shows how or whether Labor concluded that the uncertified information was reliable. The Court, therefore, remanded for Labor to explain its reliance on uncertified information.

The last issue the union raised is that Labor had previously certified other AT&T call center workers. The union argued that this created an obligation on Labor to investigate why it reached a contrary decision in this investigation. The Court rejected line of attack stating that Labor's obligation was to decide the issue before it and not to compare the current circumstance to determinations from prior investigations or perhaps prior decades.

The Court, therefore, remanded this to Labor to reconsider the decision in light of the Court's opinion.

One final note, as mentioned in the last post, pro bono opportunities at the Court of International Trade are not very common these days. There had been much more TAA litigation in the 1990's and many of those cases were filed without the advice of counsel. This case was also initiated pro se. The folks at Akin Gump took up the matter pro bono. That is a service to the petitioners as well as to the public, which benefits from ensuring that meritorious claims for TAA benefits are pursued fully. So thanks to Devin Sikes, Bernd Janzen, and Tebsy Paul for that.