Slip Op. 18-106

UNITED STATES COURT OF INTERNATIONAL TRADE

FORMER EMPLOYEES OF FIFTH 

THIRD BANK, 

Plaintiffs, 

v.

UNITED STATES SECRETARY OF 

LABOR, 

Defendant. 

Before: Mark A. Barnett, Judge

Court No. 17-00258

OPINION AND ORDER

[Remanding the U.S. Department of Labor’s remand redetermination denying Plaintiffs’

certification as a class of workers entitled to Trade Adjustment Assistance benefits.]

Dated: August 27, 2018

Daniel E. Young, Plant, Christensen & Kanell, of Salt Lake City, UT, for Plaintiffs.

Agatha Korowski, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.

Department of Justice, of Washington, DC, for Defendant. With her on the brief were 

Chad A. Readler, Principal Deputy Assistant Attorney General, Jeanne E. Davidson,

Director, and Claudia Burke, Assistant Director. Of counsel on the brief was Jayant

Reddy, Attorney Advisor, Employment and Training Legal Services, Office of the 

Solicitor, U.S. Department of Labor, of Washington, DC.

Barnett, Judge: Before the court is the U.S. Department of Labor’s (“Labor”)

remand redetermination denying certification to Plaintiffs as a class of workers entitled 

to Trade Adjustment Assistance (“TAA”) pursuant to Section 222 of the Trade Act of

1974, as amended, 19 U.S.C. § 2272 (2012).1 See Notice of Negative Determination 

1 All further references to the Trade Act of 1974, as amended, are to Title 19 of the U.S. 

Code, and all references to the U.S. Code are to the 2012 edition.
Court No. 17-00258 Page 2

on Remand (“Remand”), ECF No. 18. Labor filed its redetermination pursuant to court 

order, which granted Defendant’s unopposed motion for a voluntary remand of Labor’s 

initial negative determination regarding Plaintiffs’ eligibility for TAA benefits. See

Unopposed Mot. for Vol. Remand (“Remand Mot.”), ECF No. 8; Scheduling Order (Dec. 

15, 2017) (“Remand Order”), ECF No. 9; see generally Notice of Determinations 

Regarding Eligibility to Apply for Worker Adjustment Assistance, 82 Fed. Reg. 29,104, 

29,114-15 (Dep’t Labor June 27, 2017) (“Negative Notice”).2 For the following reasons, 

the court remands this action for reconsideration by Labor.

On January 4, 2017, the State of Florida filed a petition for Trade Adjustment 

Assistance on behalf of certain workers of Fifth Third Bank, Global Financial Institutions 

(“Fifth Third GFI”), a wholly owned subsidiary of Fifth Third Bancorp (“Fifth Third”), Coral 

Gables, Florida. Remand at 1; Petition for Trade Adjustment Assistance (TAA)

(“Petition”), AR1-AR3.3 The workers, who were engaged in “International 

Correspondent Banking services,”4 identified the displacement of U.S. banks by nonU.S. banks in the correspondent banking market as the reason for their separation from 

Fifth Third GFI. Petition, AR1-AR2.

2 The Administrative Record (“AR”) for Labor’s determination is divided into a 

confidential record, ECF No. 21, and a public record, ECF No. 22. The court references 

the confidential record documents, unless stated otherwise. 

3 The Administrative Record documents are not individually numbered; rather, each 

page is stamped with an “AR” number that the court uses to identify the cited pages.

4 Correspondent banking “enables the provision of domestic and cross-border 

payments, supports economic growth through international trade and cross-border

financial activity, including remittances.” IMF Staff Discussion Note, The Withdrawal of 

Correspondent Banking Relationships: A Case for Policy Action at 7 (June 2016), AR96.
Court No. 17-00258 Page 3

Workers may be eligible for certification by Labor for TAA benefits when they are 

“affected by an increase in foreign imports or a shift in production or services to a 

foreign country.” Former Emp. of Geokinetics, Inc. v. United States Sec’y of Labor, 41

CIT ___, ___, 219 F. Supp. 3d 1392, 1400 (2017) (citing 19 U.S.C. § 2272(a)). Workers

must first demonstrate that “a significant number or proportion of the workers in such 

workers’ firm have become totally or partially separated, or are threatened to become 

totally or partially separated.” 19 U.S.C. § 2272(a)(1). If this threshold requirement is 

met, workers may demonstrate eligibility in one of two ways: the increased imports path 

pursuant to 19 U.S.C. § 2272(a)(2)(A), or the shift in production or supply path pursuant 

to 19 U.S.C. § 2272(a)(2)(B). See Geokinetics, 219 F. Supp. 2d at 1400; Remand at 4-

5. Relevant here, to obtain certification under the increased imports path, workers must 

demonstrate that (1) “the sales or production, or both, of [the workers’] firm have 

decreased absolutely,” 19 U.S.C. § 2272(a)(2)(A)(i); (2) the “imports of articles or 

services like or directly competitive with articles produced or services supplied by such 

firm have increased,” id. § 2272(a)(2)(A)(ii)(I);5 and (3) “the increase in imports 

described in clause (ii) contributed importantly to such workers' separation or threat of 

separation and to the decline in the sales or production of such firm,” id.

§ 2272(a)(2)(A)(iii).6

5 There are three ways workers may fulfill the increased imports requirement, see 19

U.S.C. § 2272(a)(2)(A)(ii)(I)-(III); however, only the first enumerated criterion is relevant 

here. 

6 Workers may also demonstrate eligibility for TAA benefits if they satisfy the criteria set 

forth in 19 U.S.C. § 2272(b) (regarding adversely affected secondary workers) and 19

U.S.C. § 2272(e) (regarding adversely affected firms identified by the U.S. International 
Court No. 17-00258 Page 4

Labor initially denied certification on the basis that Fifth Third GFI failed to meet 

the threshold criterion regarding the number of separated workers because only one 

worker had been separated. Negative Notice, 82 Fed. Reg. at 29,114-15; 29 C.F.R. 

§ 90.2 (defining a “[s]ignificant number or proportion of the workers” in a firm (or 

subdivision thereof) of less than 50 workers as at least 3 workers). On request for 

reconsideration, Labor affirmed its negative determination. Notice of Negative 

Determination Regarding Application for Reconsideration, AR201-AR203.

On October 24, 2017, Plaintiffs commenced this action challenging Labor’s 

negative determination. Summons, ECF No. 1. On December 15, 2017, Defendant 

requested remand to investigate Plaintiffs’ allegation that Labor too narrowly defined the 

relevant worker group for purposes of examining the number of separated workers. 

Remand Mot. at 3. The court granted Defendant’s motion and ordered Labor to 

“conduct additional investigation to determine whether plaintiffs are eligible for 

certification for TAA benefits based on the criteria enumerated in 19 U.S.C. § 2272, 

provide additional explanation, and reconsider its negative determination.” Remand 

Order at 1.

On May 16, 2018, Labor filed its redetermination. See Remand. Therein, Labor 

revised the relevant worker group (or “subject firm”) to consist of Fifth Third Bank, 

Global Transaction Banking (“Fifth Third GTB”), a wholly owned subsidiary of Fifth Third 

Trade Commission). Labor denied certification pursuant to those subsections, and 

Plaintiffs do not challenge those findings. See Remand at 11; see generally Comments 

on Remand Results (“Pls.’ Comments”), ECF No. 25.
Court No. 17-00258 Page 5

Bancorp, Cincinnati, Ohio.7 Remand at 7. Accordingly, Labor determined that the 

threshold criterion set forth in 19 U.S.C. § 2272(a)(1) regarding the number of separated 

workers had been met. Remand at 8-9. Labor also found that the workers had satisfied 

the criterion set forth in 19 U.S.C. § 2272(a)(2)(A)(i) because Fifth Third GTB’s sales of 

global transaction services had decreased. Remand at 9. 

Labor denied certification, however, because it found that the requirements set 

forth in 19 U.S.C. § 2272(a)(2)(A)(ii) had not been met.8 Labor explained that “the 

workers’ firm, customer, and aggregate U.S. imports of services like or directly 

competitive with global transaction services supplied by [Fifth Third GTB] did not 

increase during the relevant period.” Remand at 9. Labor stated that its investigation

on remand indicated that “the firm did not import services like or directly competitive 

with the services supplied by [Fifth Third GTB].” Remand at 9. Labor explained that it 

did not issue customer surveys because Fifth Third GTB “does not have direct 

customers; rather, the subject firm provides ancillary services that support other 

branches of the firm (i.e., internal services).” Id.

On July 30, 2018, Plaintiffs filed comments in opposition to the redetermination. 

See Pls.’ Comments. Plaintiffs assert that Labor failed to adequately investigate their 

7 Fifth Third GTB consists of workers that “engage in activities related to the supply of 

global transaction services through two different groups”: the global financial institutions 

group (i.e, Fifth Third GFI), and a trade services group (“Fifth Third TSG”). See

Remand at 8. The workers in Fifth Third GTB “are not separately identifiable by 

function,” Remand at 8; i.e., as workers in either Fifth Third GFI or Fifth Third TSG.

8 Accordingly, Labor did not reach the third prong of the increased imports test

regarding the relationship between decreased sales and the increase in imports 

pursuant to 19 U.S.C. § 2272(a)(2)(A)(iii). 
Court No. 17-00258 Page 6

claims and they are entitled to certification. See id. at 6-10. On August 23, 2018, 

Defendant requested, with the consent of the Plaintiff, that the court again remand this 

action so that Labor may conduct further investigation. Unopposed Mot. for Voluntary 

Remand, ECF No. 26. In particular, Defendant cites Plaintiffs’ contention that Labor 

erred in concluding that Fifth Third GTB provided only internal services and concedes 

that the record appears to be ambiguous on this point. Id. at 3.

When an agency requests remand without confessing error in order to reconsider 

its previous position, this court has discretion as to whether to remand. SKF USA, Inc. 

v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001). If the agency’s request is 

frivolous or in bad faith, a remand may be denied. Id. However, “if the agency’s 

concern is substantial and legitimate, a remand is usually appropriate.” Id.

Defendant seeks remand so that Labor may determine whether relevant imports 

increased by conducting further investigation into whether Fifth Third GTB provided 

services to customers outside the firm and, if appropriate, issuing customer surveys. 

Labor intends to conduct additional investigation to determine whether Plaintiffs are 

eligible for TAA certification and issue an appropriate redetermination. Plaintiffs support 

the request for remand.

Upon review of the redetermination upon remand, Plaintiffs’ comments on that 

redetermination, and Defendant’s unopposed motion for remand, the court finds that the 

agency’s request is neither frivolous nor in bad faith and is otherwise warranted. 

Accordingly, the court remands Labor’s redetermination for further investigation and

redetermination, as appropriate. 
Court No. 17-00258 Page 7

CONCLUSION AND ORDER

In accordance with the foregoing, it is hereby 

ORDERED that the motion for remand is granted; and it is further 

ORDERED that this action is remanded to the U.S. Department of Labor 

(“Labor”); and it is further 

ORDERED that Labor will, consistent with applicable statutes and regulations: 

(1) conduct further investigation, as appropriate; (2) determine whether the petitioning 

workers are eligible to apply for Trade Adjustment Assistance; and (3) issue the 

appropriate redetermination on remand; and it is further 

ORDERED that the remand results shall be filed no later than 60 days after the 

date of this order; and it is further 

ORDERED that, in the event of an affirmative redetermination, the parties shall 

notify the court within 15 days of the filing of the remand results whether any live 

disputes remain and, if so, propose a joint scheduling order; and it is further 

ORDERED that, in the event of a negative redetermination, the administrative 

record shall be filed no later than 15 days following the filing of the remand results; and 

it is further 

ORDERED that, in the event of a negative determination, Plaintiffs may file 

comments with the court indicating whether they are satisfied or dissatisfied with the 

remand results no later than 30 days after the record is filed with the court; and it is 

further 
Court No. 17-00258 Page 8 

ORDERED that Defendant may respond to any such comments no later than 15 

days after filing.

/s/ Mark A. Barnett

Mark A. Barnett, Judge

Dated: August 27, 2018

New York, New York