Slip Op. 09 - 43

UNITED STATES COURT OF INTERNATIONAL TRADE

 

:

FORMER EMPLOYEES OF :

HONEYWELL INTERNATIONAL, INC. :

:

Plaintiffs, : Before: MUSGRAVE, Senior Judge

:

 v. : Court No. 08-00315

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UNITED STATES DEPARTMENT OF :

LABOR :

:

Defendant. :

 :

OPINION

[Secretary of Labor’s negative eligibility determination for trade adjustment assistance sustained.]

Dated: May 14, 2009

Goldstein Gragel LLC (Joyce Goldstein and Gina Fraternali), for the plaintiffs.

Michael F. Hertz, Acting Assistant Attorney General; Jeanne E. Davidson, Director, Patricia

M.. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States

Department of Justice (Antonia R. Soares); Office of the Solicitor, U.S. Department of Labor, of

counsel (Jonathan Hammer), for the defendant.

MUSGRAVE, Senior Judge: Plaintiffs are several hundred former employees of the

Aerospace Division of Honeywell International, Inc. (“Honeywell Aerospace”). Invoking

jurisdiction here pursuant to 19 U.S.C. § 2395 and 28 U.S.C. § 1581(d)(1), they challenge the denial

of their Petition for Trade Adjustment Assistance (“TAA”) and Alternative Trade Adjustment

Assistance (“ATAA”) by the director of the Division of Trade Adjustment Assistance, Employment

and Training Administration, U.S. Department of Labor (“Labor”). See Honeywell Aerospace,
Court No. 08-00315 Page 2

 Worker eligibility for TAA benefits is governed by section 222 of the Trade Act of 1974, 1

as amended, 19 U.S.C. § 2272. In general, to be eligible for TAA benefits the Secretary must find

a “significant number” of layoffs from the workers’ firm or “appropriate subdivision” and either an

absolute decrease in sales or production (or both) due to imports of articles that “contributed

importantly” to the layoffs or decline in sales or production and that are directly competitive with

the articles produced by the workers’ firm, or a shift in production from the workers’ firm to

countries outside the United States (and, in the case of countries not covered by a free trade

agreement or certain other Acts, there has been or is likely to be an increase in imports of articles that

are like or directly competitive with articles which are or were produced by the workers’ firm or

subdivision). 19 U.S.C. § 2272(a). In addition to TAA, older workers for whom retraining may not

be appropriate may be eligible for ATAA, a separate program subsidizing the wages of those who

quickly obtain re-employment at a lower wage than what they previously earned. See 19 U.S.C. §

2318; see also U.S. Gov. Accountability Office, TAA: Most Workers in Five Layoffs Received

Services, But Better Outreach Needed on New Benefits, GAO-06-43, Jan. 2006, at 9. ATAA is

conditional upon certification for TAA, and in determining whether to grant group certification under

the ATAA, Labor considers three criteria: (1) whether a significant number of workers in the

workers’ firm are 50 years of age or older, (2) whether the workers in the workers’ firm possess

skills that are not easily transferable, and (3) the competitive conditions within the workers’ industry.

19 U.S.C. § 2318(a)(3)(A)(ii).

Defense & Space Division Teterboro NJ: Notice of Negative Determination on Reconsideration, 73

Fed. Reg. 42372 (July 21, 2008); see also 19 U.S.C. §§ 2272(a), 2273, 2318.1

A decision by Labor to deny certification of eligibility for trade assistance benefits

must be sustained if it is in accordance with law and supported by substantial evidence in the

administrative record. See 19 U.S.C. § 2395(b). See, e.g., Former Employees of Kleinerts, Inc. v.

Herman, 23 CIT 647, 650, 74 F. Supp. 2d 1280, 1284 (1999). This court has examined the pleadings

and administrative record and concludes that the plaintiffs contention essentially resolves to whether

Labor’s confirmation, with the contact person for Honeywell Aerospace, and with the local Defense

Contract Management Agency Team Leader, that Honeywell’s production at the Teterboro facility,

where the employees had been employed, is subject to the International Traffic in Arms Regulations

(“ITAR”), 22 C.F.R. §§ 120.1-130.17 (which require, pursuant to 22 U.S.C. § 2778, inter alia,
Court No. 08-00315 Page 3

domestic production and nonimportation in the absence of a license of defense articles on the United

States Munitions List, 22 U.S.C. § 2778(a)(1); see CR at 27, 29, & PR at 49-52) as well as

Honeywell Aerospace’s statements regarding its reasons for closure of the Teterboro facility and

transfer of its production to other domestic facilities and not overseas, constitute adequate

investigation and amount to substantial evidence on the record to support finding that production

at Teterboro was not shifted abroad or that the plaintiffs’ work was not impacted by imports. The

court concludes that it does, and that substantial evidence of record supports those findings. See,

e.g., CR at 14, 18, 21-22, 27, 29, 35, 37, 55, 78-79. See also Hewlett-Packard Co. v. United States,

17 CIT 980, 986 (1993) (“[r]elevant case law has consistently held that the TAA statute does not

apply when a company closes because economic factors make continued operations impractical

rather than due to direct import competition”). Further, imports of like product are proscribed by

ITAR regulation and law, and there is nothing in the record from which to infer imports in

contravention thereof.

The brevity of this opinion does not reflect the commendable briefing of the parties,

but in light of the foregoing, the court must consider the plaintiffs’ other contentions as without

merit. See Chen v. Chao, 32 CIT ___, ___, 587 F. Supp. 2d 1292, 1296 (2008) (recognizing that

investigation into other criteria of section 2272(a)(2)(A) unnecessary if adequate investigation shows

one criterion lacking). Because the record supports Labor’s finding that an essential criterion for

TAA eligibility is lacking, Labor’s negative determination must be sustained.

Dated: May 14, 2009 /s/ R. Kenton Musgrave 

New York, New York R. KENTON MUSGRAVE, Senior Judge