Slip Op. 09 - 14 

 UNITED STATES COURT OF INTERNATIONAL TRADE 

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FORMER EMPLOYEES OF WARP PROCESSING : 

CO., INC., 

 : 

 Plaintiffs, 

 : 

v. Court No. 08-00179 

 : 

UNITED STATES DEPARTMENT OF LABOR, 

 : 

 Defendant. 

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 Memorandum & Order

[Motion for voluntary remand to defendant 

regarding plaintiffs’ eligibility for 

trade-adjustment assistance granted.] 

 Dated: February 20, 2009 

Steptoe & Johnson LLP (Joel D. Kaufman and Michael T. 

Gershberg) for the plaintiffs. 

Michael F. Hertz, Deputy Assistant Attorney General; Jeanne E. 

Davidson, Director, Patricia M. McCarthy, Assistant Director, 

Commercial Litigation Branch, Civil Division, U.S. Department of 

Justice (Christopher L. Krafchek) for the defendant. 

AQUILINO, Senior Judge: This action pursuant to 19 

U.S.C. §2395 and 28 U.S.C. §1581(d) has been brought by former 

employees of Warp Processing Co., Inc. of Exeter, Pennsylvania, 

seeking judicial review of the Negative Determinations Regarding 

Eligibility To Apply for Worker Adjustment Assistance And 

Alternative Trade Adjustment Assistance (Feb. 19, 2008) of the
Court No. 08-00179 Page 2 

Employment and Training Administration (“ETA”), U.S. Department of 

Labor, No. TA-W-62,655, and of its subsequent Notice of Negative 

Determination Regarding Application for Reconsideration (March 18, 

2008). Upon the filing of the ETA administrative record (“AR”), 

answer to the complaint, and motion by the plaintiffs for judgment 

on that record, comes now the Defendant’s Consent Motion for 

Voluntary Remand “to enable Labor to state with greater clarity and 

accuracy the bases for its determination in a way that would 

facilitate this Court’s review.” 

I 

 Suffice it to state that such review, albeit limited to 

date, leads to the conclusion that defendant’s motion is welltaken. Whatever the impact of increased imports from China and 

other countries on domestic textile manufacturing, “adversely 

affected secondary workers” shall be certified as eligible to apply 

for trade adjustment assistance (“TAA”) benefits if the Secretary 

of Labor determines that 

(1) a significant number or proportion of the 

workers in the workers’ firm or an appropriate 

subdivision of the firm have become totally or partially 

separated, or are threatened to become totally or 

partially separated; 

(2) the workers’ firm (or subdivision) is a supplier 

or downstream producer to a firm (or subdivision) that 

employed a group of workers who received a certification 

of eligibility under subsection (a) of this section, and 

such supply or production is related to the article that 
Court No. 08-00179 Page 3 

was the basis for such certification (as defined in 

subsection (c)(3) and (4)[1] of this section); and 

(3) either – 

(A) the workers’ firm is a supplier and the 

component parts it supplied to the firm (or 

subdivision) described in paragraph (2) accounted 

for at least 20 percent of the production or sales 

of the workers’ firm; or 

(B) a loss of business by the workers’ firm 

with the firm (or subdivision) described in 

paragraph (2) contributed importantly to the 

workers’ separation or threat of separation 

determined under paragraph (1). 

19 U.S.C. §2272(b). 

A 

According to ETA’s Negative Determinations herein, the 

agency’s investigation revealed that foregoing subsection 3 had not 

been met: 

Petitioners allege that job losses were due to their 

firm losing business as a supplier firm, producing 

components for trade certified firms. The investigation 

revealed the subject firm did supply component parts 

utilized by customers engaged in textile manufacturing; 

however, workers at these textile manufacturing firms 

have not received a primary certification making them 

eligible to apply for adjustment assistance. 

 1

 Section 2272(c)(3) of Title 19, U.S.C. defines “downstream 

producer” as “a firm that performs additional, value-added 

production processes for a firm or subdivision, including a firm 

that performs final assembly or finishing” and (c)(4) defines a 

“supplier” as “a firm that produces and supplies directly to 

another firm (or subdivision) component parts for articles that 

were the basis for a certification of eligibility”. 
Court No. 08-00179 Page 4 

AR, p. 112. Without any supplementation of the administrative 

record, ETA’s negative determination regarding the petitioners’ 

application for reconsideration explains that the investigation 

revealed that Warp’s only customer was Brawer Brothers, Inc. See

id. at 142. That determination also reports that the agency 

considered three companies, which the petitioners claimed to have 

been supplied with component products by Warp and which had 

currently TAA-certified worker groups. The agency found that such 

certifications in re Cortina Fabrics and Guilford Mills, Inc. had 

expired prior to the period at issue in this matter. As for Native 

Textiles, Inc., while its workers were certified as eligible to 

apply for benefits under 19 U.S.C. §2272(a) during the relevant 

period, ETA found that circumstance to be 

irrelevant because the subject firm did not conduct 

business with that company during the relevant period and 

because warped synthetic fiber is not a component part of 

the warp knit synthetic tricot fabric produced by Native 

Textiles. 

Id. 

II 

In an action such as this, the Secretary of Labor’s 

findings of fact are conclusive, if supported by substantial 

evidence. However, the court, “for good cause shown, may remand 

the case to such Secretary to take further evidence, and . . . make 
Court No. 08-00179 Page 5 

new or modified findings of fact”. 19 U.S.C. §2395(b). Moreover, 

since the governing Trade Act of 1974 is remedial legislation, the 

Secretary is “obliged” to conduct an investigation with the utmost 

regard for the interests of the petitioning workers. E.g., Abbott 

v. Donovan, 7 CIT 323, 327-28, 588 F.Supp. 1438, 1442 (1984). 

A 

As the court reads the administrative record, such as it 

is, there is actually a finding by ETA of failure to satisfy 19 

U.S.C. §2272(b)(2), supra, as opposed to (b)(3), per its report 

that the 

investigation revealed the subject firm did supply 

component parts utilized by customers engaged in textile 

manufacturing; however, workers at these textile 

manufacturing firms have not received a primary 

certification making them eligible to apply for 

adjustment assistance. 

AR, p. 112. Although not stated, the record does indicate that 

Brawer Brothers, Inc. did not employ a group of workers who 

received a certification of eligibility under 19 U.S.C. §2272(a) 

during the relevant period of investigation. See id. at 55. 

However, there is not sufficient evidence on the record to support 

a finding that Brawer Brothers, Inc. was Warp Processing Co.’s only 

customer. Cf. Former Employees of General Elec. Corp. v. U.S. 

Dep’t of Labor, 14 CIT 608 (1990)(no deference is due to 

determinations based on inadequate investigations). 
Court No. 08-00179 Page 6 

This view appears to be shared now by the parties. See

Defendant’s Consent Motion for Voluntary Remand, p. 3: 

. . . [P]laintiffs refer[] to supplemental evidence 

allegedly showing that Warp and Brawer Bros. may have 

operated as one entity. A remand would enable Labor to 

place this information on the record and determine the 

scope of the relationship between Warp and Brawer Bros. 

Whether or not Warp was a downstream producer for Native Textiles, 

Inc., a product of which was warp knit synthetic tricot fabric, 

evidence currently on the record does not provide the dispositive 

answer. With regard to ETA’s survey of Brawer Brothers’ customers, 

there appears only to have been an inquiry into whether there were 

increased imports, and not whether that firm’s customers were 

certified within the meaning of 19 U.S.C. §2272(b)(2), supra. 

III 

In view of the foregoing, defendant’s motion for remand 

should be, and it hereby is, granted. On remand, ETA should 

supplement the record in this matter as necessary to reach a 

determination supported by substantial evidence. Specifically, 

before deciding eligibility for adjustment or alternative 

adjustment assistance, the defendant is directed to determine the 

relationship between Warp Processing Co., Inc. and Brawer Brothers, 

Inc.; to determine the degree, if any, Native Textiles, Inc. was or 
Court No. 08-00179 Page 7 

is a customer of Warp Processing Co., Inc.; to determine the 

degree, if any, the firms on the lists provided by petitioner Keith 

Thieman (AR, p. 75) and the firms presumably provided by Brawer 

Brothers, Inc. as a listing of its Major Declining Customers (id. 

at 102) were or are customers of Warp Processing Co., Inc.; and, in 

that regard, to determine if any workers of customers of Warp 

Processing Co., Inc. were certified as eligible under 19 U.S.C. 

§2272(a) to apply for adjustment assistance at a relevant time. 

The defendant may have until May 22, 2009 to carry out 

this remand and report the results thereof. The plaintiffs may 

file any comments thereon on or before June 19, 2009. 

So ordered. 

Dated: New York, New York 

 February 20, 2009 

 /s/ Thomas J. Aquilino, Jr. 

 Senior Judge