Citations
- 714 F. Supp. 2d 1320
Full opinion text
OPINION
RIDGWAY, Judge:
In this action, former employees of the Chattanooga, Tennessee plant operated by Invista, S.a.r.l. (“the Workers”) contested the determinations of the U.S. Department of Labor denying their petition for certification of eligibility for trade adjustment assistance (“TAA”) and alternative trade adjustment assistance (“ATAA”). The determinations at issue included the Labor Department’s original denial of the Workers’ petition, as well as the agency’s denial of the Workers’ request for reconsideration, and the agency’s negative determination following a voluntary remand. See 72 Fed.Reg. 7907, 7909 (Feb. 21, 2007) (notice of denial of petition); 72 Fed.Reg. 15,169 (March 30, 2007) (notice of denial of request for reconsideration); 73 Fed.Reg. 32,739 (June 10, 2008) (notice of negative determination on voluntary remand, or “Remand Determination”).
Invista I reviewed the Workers’ challenge to the Labor Department’s negative Remand Determination (ie., the negative determination in the voluntary remand proceeding), and remanded this matter to the agency for a second time. See Former Employees of Invista, S.a.r.l. v. U.S. Sec’y of Labor, 33 CIT —, 626 F.Supp.2d 1301 (2009) (“Invista I”). As a result of the investigation in the course of the second remand, the Labor Department granted the Workers’ Petition, amending the agency’s 2004 TAA/ATAA certification of Invista workers to cover the Workers at issue here. See Notice of Revised Determination on Remand, 74 Fed.Reg. 51,195 (Oct. 5, 2009) (“Second Remand Determination”); Supplemental Administrative Record (“Second Supplemental Administrative Record”). That determination was sustained in Invista II. See Former Employees of Invista, S.a.r.l. v. U.S. Sec’y of Labor, 33 CIT -, 657 F.Supp.2d 1359 (2009) {“Invistall”).
Now pending before the Court is Plaintiffs’ Application for Fees and Other Expenses Pursuant to the Equal Access to Justice Act, seeking an award in the sum of $13,463.20, which the Government opposes. See Plaintiffs’ Memorandum of Law in Support of Equal Access to Justice Act Application (“Pis.’ EAJA Application”); Defendant’s Response to Plaintiffs’ Application for Attorney Fees and Expenses (“Def.’s Response”).
For the reasons set forth below, Plaintiffs’ Application for Fees and Other Expenses must be granted.
I. Background
As Invista II noted, “[t]his should have been a relatively easy case for the Labor Department. The agency previously certified former Invista employees who did the same jobs at the same plant as the Workers at issue here.” See Invista II, 33 CIT at --, 657 F.Supp.2d at 1361 (citing Invista I, 33 CIT at -, 626 F.Supp.2d at 1305). The only significant issue which the Labor Department had to resolve in this case was whether the termination of these Workers was “attributable to the basis for [the 2004 TAA/ATAA] certification” — that is, whether the termination of these Workers was “attributable to” the 2004 shift of production to Mexico. See, e.g., Weirton Steel Corporation, Weirton, WV: Negative Determination on Remand, 73 Fed.Reg. 52,066, 52,068 (Sept. 8, 2008) (“Weirton Steel”) (articulating standard for amendment of TAA/ATAA certification to extend period of coverage to include worker separations occurring after expiration date of original TAA/ATAA certification). The Labor Department nevertheless required “four bites at the apple” to conduct the thorough investigation mandated by statute, delaying for more than two and a half years the Workers’ certification for the TAA/ATAA benefits to which the Labor Department ultimately determined they are entitled. See Invista II, 33 CIT at-,-, 657 F.Supp.2d at 1361, 1364-65 (citations omitted).
As detailed in Invista I and Invista II, the plaintiff Workers in this case are former employees of the Nylon Apparel Filament Fibers Group at Invista’s Chattanooga, Tennessee plant. At the time of their termination on January 31, 2007, they processed orders for apparel fiber in support of apparel fiber production at an Invista plant in Mexico. Apparel fiber had previously been manufactured at the Chattanooga plant, until domestic production ceased and all such production was shifted to a facility in Mexico in 2004. Since the 2004 shift of production, only nylon performance filament fiber (“performance fiber”) has been produced at the Chattanooga plant. See generally Invista I, 33 CIT at-, 626 F.Supp.2d at 1305; Invista II, 33 CIT at -, 657 F.Supp.2d at 1361.
The 2004 shift of production to Mexico led to widespread layoffs of production workers and support personnel at the Chattanooga plant. At that time, Invista management filed a petition for TAA and ATAA benefits on behalf of the terminated workers, which the Labor Department granted. Specifically, the Labor Department’s 2004 certification certified as eligible for TAA and ATAA all Invista workers “engaged in employment related to the production of,” inter alia, apparel fiber “who became totally or partially separated from employment on or after June 7, 2003, through two years from the date of certification [ie., two years from August 20, 2004].” See generally Invista I, 33 CIT at -, 626 F.Supp.2d at 1305-06 (quoting 69 Fed.Reg. 54,320, 54,321 (Sept. 8, 2004)) (emphasis added); Invista II, 33 CIT at -, 657 F.Supp.2d at 1361.
The Workers at issue here survived the 2004 layoffs, and continued their work at the Chattanooga site in support of apparel fiber production, even after that production shifted to Mexico. However, on November 14, 2006 — a mere three months after the Labor Department’s 2004 TAA/ ATAA certification expired — the Workers were notified that they were being terminated effective January 31, 2007. See generally Invista I, 33 CIT at -, 626 F.Supp.2d at 1306; Invista II, 33 CIT at -, 657 F.Supp.2d at 1361.
Shortly thereafter, Invista’s Chattanooga Plant Manager filed the TAA/ATAA petition at issue here, on behalf of the Workers. In the TAA/ATAA Petition, In-vista’s Plant Manager attested, under oath, that the Workers’ terminations were “a continuation of the shift in production to Mexico as described in [the 2004 TAA/ ATAA certification] that expired August 20, 2006.” See A.R. 2; Invista I, 33 CIT at-, 626 F.Supp.2d at 1306; Invista II, 33 CIT at -, 657 F.Supp.2d at 1362. The Plant Manager further explained that — notwithstanding the 2004 shift of production to Mexico — “all orders [for apparel fiber had] continued to be processed from the United States” up to the time of the filing of the 2006 TAAATAA Petition, but that, for the future, all such work was being transferred to “CSR’s [ie., Customer Service Representatives] located in South America.” See A.R. 2; Invista I, 33 CIT at -, 626 F.Supp.2d at 1306 (citation omitted); Invista II, 33 CIT at -, 657 F.Supp.2d at 1362. The TAA/ATAA Petition also noted that several of the subject Workers were age 50 or older, that their skills were “not easily transferable,” and that “[cjompetitive conditions within the industry are adverse.” See A.R. 2; Invista I, 33 CIT at-, 626 F.Supp.2d at 1306; Invista II, 33 CIT at -, 657 F.Supp.2d at 1362.
The Labor Department denied the Workers’ TAA/ATAA Petition. See generally Invista I, 33 CIT at -, 626 F.Supp.2d at 1306 (citing 72 Fed.Reg. at 7909 (denying TAA/ATAA Petition on grounds that “[t]he workers’ firm does not produce an article as required for certification”)); Invista II, 33 CIT at -, 657 F.Supp.2d at 1362. The Labor Department found that “domestic production of an article within ... [Invista’s] Nylon Apparel Filament Fibers Group [had] ceased more than one year [before]” the Workers’ termination, and that the petitioning Workers thus “were not in support of domestic production within the requisite one year period” — an allusion to 29 C.F.R. § 90.2, which concerns cases involving allegations of “increased imports” (not “shift of production” cases such as the case at bar). See A.R. 31 (emphasis added); 29 C.F.R. § 90.2 (2006); Invista I, 33 CIT at -, 626 F.Supp.2d at 1306; Invista II, 33 CIT at -, 657 F.Supp.2d at 1362. The Labor Department therefore concluded that the Workers could not be “considered import impacted or affected by a shift in production of an article”; and, because the agency determined that the Workers were not eligible for TAA, the Workers’ petition for ATAA was also denied. See A.R. 31-32; Invista I, 33 CIT at -, 626 F.Supp.2d at 1306; Invista II, 33 CIT at -, 657 F.Supp.2d at 1362. At no time in the course of its initial investigation did the Labor Department consider amending the 2004 TAA/ATAA certification to extend the period of coverage to include the Workers at issue here.
The Workers requested that the Labor Department reconsider its denial of their TAA/ATAA Petition, underscoring that they had “missed the opportunity of receiving ... [TAA and ATAA] benefits by less than 3 months,” and emphasizing that they would have been covered by the 2004 TAA/ATAA certification — and thus would have been eligible for TAA/ATAA benefits — if only Invista management had notified the Workers of their impending terminations “in August, versus November of 2006.” See A.R. 35-38; Invista I, 33 CIT at-, 626 F.Supp.2d at 1306-07; Invista II, 33 CIT at-, 657 F.Supp.2d at 1362. Significantly, echoing a point made by In-vista’s Chattanooga Plant Manager in the TAA/ATAA Petition, the Workers’ Request for Reconsideration stated that their layoffs were, in effect, the culmination of the 2004 shift of production of apparel fiber to Mexico' — the “direct result of the ... apparel machines going to Mexico, the loss of textile manufacturing in the U.S. the bigger picture.” See A.R. 36; Invista I, 33 CIT at -, 626 F.Supp.2d at 1307 (citations omitted); Invista II, 33 CIT at -, 657 F.Supp.2d at 1362.
Notwithstanding the statements in the Workers’ Request for Reconsideration linking their termination to Invista’s 2004 shift of production, the Labor Department again gave no consideration to amending the 2004 TAA/ATAA certification to extend the period of coverage to include the Workers here. Instead, the Labor Department denied the Workers’ Request for Reconsideration, with no further investigation whatsoever. See 72 Fed.Reg. at 15,169. The Labor Department acknowledged the Workers’ claim that their termination was “a direct result of the same shift in production to Mexico ... which resulted in workers certification for TAA in 2004.” See A.R. 45; Invista I, 33 CIT at -, 626 F.Supp.2d at 1307 (citations omitted); Invista II, 33 CIT at -, 657 F.Supp.2d at 1362-63. However, the Labor Department stated that, pursuant to agency regulations, it only “considers production that occurred one year prior to the date of the petition” — once again alluding to 29 C.F.R. § 90.2 (even though, on its face, the referenced provision of the regulation is limited to cases involving “increased imports,” and has nothing to do with “shift of production” cases like this). See A.R. 46; 29 C.F.R. § 90.2; Invista I, 33 CIT at -, 626 F.Supp.2d at 1307 (citation omitted); Invista II, 33 CIT at -, 657 F.Supp.2d at 1363. The Labor Department concluded that, because the Chattanooga plant had ceased production of apparel fiber in 2004, the Workers’ TAA/ATAA Petition was “outside of the relevant period.” See A.R. 46; Invista I, 33 CIT at -, 626 F.Supp.2d at 1307 (citation omitted); Invista II, 33 CIT at -, 657 F.Supp.2d at 1363.
This action followed. The Workers sought judgment on the agency record, arguing, inter alia, that the Labor Department had denied the Workers’ TAA/ATAA Petition based on the agency’s determination that the Workers “were not in support of domestic production within the requisite one year period,” but that the agency had failed to identify the authority for any such asserted one-year limitation. See Invista I, 33 CIT at -, 626 F.Supp.2d at 1307 (citations omitted); Invista II, 33 CIT at -, 657 F.Supp.2d at 1363. In addition, the Workers faulted the Labor Department for “failing] to adequately consider the relevancy of the prior [TAA/ATAA] certification.” See Invista I, 33 CIT at -, 626 F.Supp.2d at 1307 (citation omitted); Invista II, 33 CIT at -, 657 F.Supp.2d at 1363.
Conceding that, by its express terms, the one-year limitation set forth in 29 C.F.R. § 90.2 applies only in cases where layoffs result from “increased imports,” the Government sought — and was granted — a voluntary remand to permit the Labor Department to consider in the first instance the relevance of 29 C.F.R. § 90.2’s “one-year rule” in “shift of production” cases such as this. See 29 C.F.R. § 90.2 (defining “increased imports” by reference to a “representative base period” which is “one year consisting of the four quarters immediately preceding the date which is twelve months prior to the date of the petition”); Invista I, 33 CIT at -, 626 F.Supp.2d at 1307 (citations omitted); Invista II, 33 CIT at-, 657 F.Supp.2d at 1363.
In its Negative Determination on Remand (the determination at issue in Invista I), the Labor Department abandoned its reliance on the one-year time limitation in 29 C.F.R. § 90.2. Instead, the Labor Department denied the Workers’ TAA/ATAA claims based on the agency’s determination that the Workers’ terminations “[were] not related to the shift of production of apparel nylon filament to Mexico in 2004,” but, rather, were the result of “a business decision to improve the efficiency of ... [Invista’s] customer service organization.” See 73 Fed.Reg. at 32,739; Invista I, 33 CIT at -, 626 F.Supp.2d at 1307; Invista II, 33 CIT at -, 657 F.Supp.2d at 1363.
The principal evidence supporting the Labor Department’s finding was the conclusory statement of an Invista lawyer, who attributed the Workers’ termination not to “the decision made in 2004 to stop production of Nylon Apparel at the Chattanooga Site,” but rather to “a business decision to improve the efficiency of the customer service organization.” See S.A.R. 18; see also Invista I, 33 CIT at -, 626 F.Supp.2d at 1309-10. Although the statement of the Invista lawyer was in direct conflict with other evidence already on the record — including, most notably, the sworn statement of Invista’s Chattanooga Plant Manager — the Labor Department made no attempt to reconcile the inconsistency. Compare, e.g., A.R. 2 (In-vista Plant Manager’s sworn statement attesting that the Workers’ terminations were “a continuation of the [2004] shift in production to Mexico”) with S.A.R. 18 (unsworn statement of Invista lawyer, asserting that Workers’ separations were not attributable to 2004 shift of production). Nor did the Labor Department articulate any rationale for its decision to credit the statement on which it relied and to disregard the other, conflicting record evidence. Because the Labor Department determined that the Workers were not eligible for TAA, their petition for ATAA was denied as well. See 73 Fed.Reg. at 32,740; Invista I, 33 CIT at -, 626 F.Supp.2d at 1308; Invista II, 33 CIT at -, 657 F.Supp.2d at 1363.
The Workers’ renewed challenge to the Labor Department’s denial of their TAA ATAA Petition was the subject of Invista I. Invista I addressed in detail the Labor Department’s affirmative obligation to investigate TAAATAA claims “with the utmost regard for the interests of the petitioning workers.” See generally Invista I, 33 CIT at -, -, 626 F.Supp.2d at 1304-05, 1308 (citing Local 167, Int’l Holders and Allied Workers’ Union, AFL-CIO v. Marshall, 643 F.2d 26, 31 (1st Cir.1981); Former Employees of BMC Software, Inc. v. U.S. Sec’y of Labor, 30 CIT 1315, 1321, 454 F.Supp.2d 1306, 1312 (2006) (“BMC I”) (collecting additional cases)). Invista I explained that, in a case such as this, where there is a potentially relevant prior TAAATAA certification, the Labor Department must consider the possibility of doing what it has done in other, similar cases — that is, the Labor Department must consider amending the prior certification to extend coverage to the new group of petitioning workers. See Invista I, 33 CIT at -, 626 F.Supp.2d at 1309; see also Invista II, 33 CIT at -, 657 F.Supp.2d at 1364.
Invista I observed that the administrative record in this case was replete with evidence supporting the Workers’ claim that their terminations were “attributable to the basis for [the original, i.e., the 2004] certification” — that is, the 2004 shift of apparel fiber production to Mexico; and, moreover, that the evidence to the contrary (including, in particular, the statement of the Invista lawyer) was “not only scant, but also weak.” See Invista II, 33 CIT at -, 657 F.Supp.2d at 1364; Invista I, 33 CIT at -, 626 F.Supp.2d at 1309-10 (quoting Weirton Steel, 73 Fed.Reg. at 52,068). As Invista I noted, the Labor Department’s own standards required the Workers’ certification if there was a “causal nexus” between the 2004 shift of production and their terminations, notwithstanding the fact that the terminations occurred more than two years after the original 2004 TAAATAA certification (and thus after the original 2004 TAA ATAA certification had expired). See id., 33 CIT at -, 626 F.Supp.2d at 1311 (quoting Weirton Steel, 73 Fed.Reg. at 52,068); see also id., 33 CIT at -, 626 F.Supp.2d at 1309.
Invista I therefore remanded this matter to the Labor Department for a second time, with instructions requiring the agency to “thoroughly and independently investigate the facts of the case, and- — -based on that investigation- — -... [to] consider all legal theories under which the petitioning Workers might be eligible for certification, including the possible amendment of the 2004 TAA/ATAA certification.” See Invista I, 33 CIT at -, 626 F.Supp.2d at 1311; see also Invista II, 33 CIT at -, 657 F.Supp.2d at 1364.
Remarkably, in the second remand proceeding, it took just a single phone call between the Labor Department and a senior representative of Invista to confirm what Invista’s Chattanooga Plant Manager and the Workers themselves had been telling the agency for more than two and a half years — that is, that the Workers’ termination was a direct (albeit delayed) result of Invista’s 2004 shift of apparel fiber production to Mexico (which, in turn, was the basis for the Labor Department’s 2004 TAA/ATAA certification of the Workers’ former Invista colleagues). See Invista II, 33 CIT at -, 657 F.Supp.2d at 1364 0citing S.S.A.R. 45, 69-71 (documenting Aug. 21, 2009 phone call)). As a result of that phone conversation, the Labor Department reversed its three prior denials and granted the Workers’ TAA/ATAA Petition, extending the agency’s 2004 certification of eligibility to apply for both TAA and ATAA to cover the Workers here. See 74 Fed.Reg. 51,195-96; Invista II, 33 CIT at -, 657 F.Supp.2d at 1364-65.
II. Analysis
Under the Equal Access to Justice Act (“EAJA”):
[A] court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ..., including proceedings for judicial review of agency action, brought by or against the United States ..., unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A) (2000). Thus, although the court retains a measure of discretion as to the size of the award, under the EAJA “a trial court must award attorney’s fees where: (i) the claimant is a ‘prevailing party*; (ii) the government’s position was not substantially justified; (iii) no ‘special circumstances make an award unjust’; and (iv) the fee application is timely submitted and supported by an itemized statement.” Libas, Ltd. v. United States, 314 F.3d 1362, 1365 (Fed.Cir.2003) (citations omitted) (emphasis added) (also noting “the imperative language” of EAJA statute); accord Hubbard v. United States, 480 F.3d 1327, 1331 (Fed.Cir.2007) (acknowledging “mandatory” nature of EAJA award); Brickwood Contractors, Inc. v. United States, 288 F.3d 1371, 1379 (Fed.Cir.2002) (same).
The Government here does not dispute that the Workers were “prevailing parties.” Nor does the Government argue either that there are “special circumstances” that would render an award unjust, or that the Workers’ application for fees and expenses was untimely or excessive. The Government’s opposition to the Workers’ request for an award of fees and expenses thus rests entirely on its contention that the United States’ position was “substantially justified,” both at the agency level and in litigation. See generally Def.’s Response at 1 (explaining that Government “challenged neither plaintiffs’ prevailing party status, nor the reasonableness of the amount of fees they seek,” and bases its opposition to an award of fees and expenses solely on its position that “the Government’s position in this matter was substantially justified”).
As discussed in greater detail below, the United States’ position at the administrative level, at a minimum, was not “substantially justified.” The Workers are therefore entitled to an award of attorneys’ fees and expenses under the EAJA.
A. Whether the Government’s Position Was “Substantially Justified”
The Government bears the burden of proving that its position was “substantially justified.” See, e.g., Libas, 314 F.3d at 1365 (citations omitted); Doty v. United States, 71 F.3d 384, 385 (Fed.Cir.1995) (citations omitted). To be “substantially justified,” the Government’s position must be “justified in substance or in the main — that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). That a party other than the Government prevailed in an action does not establish that the Government’s position was not substantially justified. Luciano Pisoni Fabbrica Accessory Instrument, Musicali v. United States, 837 F.2d 465, 467 (Fed.Cir.1988).
In determining whether substantial justification exists, a court is to weigh not only “the position taken by the United States in the civil action, [but also] the action or failure to act by the agency upon which the civil action is based,” taking into consideration the “totality of the circumstances.” 28 U.S.C. § 2412(d)(2)(D); Kelly v. Nicholson, 463 F.3d 1349, 1355 (Fed.Cir.2006); Doty, 71 F.3d at 385-86 (citations omitted); Chiu v. United States, 948 F.2d 711, 715 (Fed.Cir.1991) (“trial courts are instructed to look at the entirety of the government’s conduct and make a judgment call” as to “the government’s overall position”); Essex Electro Eng’rs, Inc. v. United States, 757 F.2d 247, 253 (Fed.Cir.1985) (articulating “totality of the circumstances” standard).
Reaching a determination on substantial justification requires that a court reexamine the legal and factual circumstances of a case through the EAJA “prism” — “a different perspective than that used at any other stage of the proceeding.” Luciano Pisoni, 837 F.2d at 467; Libas, 314 F.3d at 1366 (quoting United States v. Hallmark Constr. Co., 200 F.3d 1076, 1080 (7th Cir.2000)). Nevertheless, “the court’s merits reasoning may be quite relevant to the resolution of the substantial justification question.” F.J. Vollmer Co., Inc. v. Magaw, 102 F.3d 591, 595 (D.C.Cir.1996). And strong language criticizing the Government’s position in an opinion discussing the merits of a key issue is evidence in support of an award of fees. See Marcus v. Shalala, 17 F.3d 1033, 1038 (7th Cir.1994) (cited in Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir.2004)). “[A] string of losses can be indicative” as well. Pierce v. Underwood, 487 U.S. at 569, 108 S.Ct. 2541.
Moreover, in evaluating the existence of substantial justification, a trial court is entitled to take into consideration “insights not conveyed by the record, into such matters as whether particular evidence was worthy of being relied upon, or whether critical facts could easily have been verified by the Government.” Pierce v. Underwood, 487 U.S. at 560, 108 S.Ct. 2541; see also Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (noting propriety of deference to trial court’s “superior understanding of the litigation”) (quoted in Comm’r, Immigration & Naturalization Service v. Jean, 496 U.S. 154, 161, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990)); Libas, 314 F.3d at 1366 n. 1 (in determining substantial justification, trial court may consider “not only the actual record,” but also “for example, any insights which [it] may have gleaned from settlement conferences or other pretrial activities that are not conveyed by the actual record”) (citing Pierce v. Underwood, 487 U.S. at 560, 108 S.Ct. 2541).
1. The Role of the Labor Department in TAA Cases
The “substantial justification” analysis in this action cannot be conducted in a vacuum. The justification for the Government’s position instead must be analyzed in the context of the trade adjustment assistance (“TAA”) statute, and the special duties and obligations that the Labor Department owes to workers in its administration of that statute. See generally BMC I, 30 CIT at 1315-22, 454 F.Supp.2d at 1307-13 (summarizing policy underpinnings, legislative history, and practical implications of TAA).
The TAA laws are remedial legislation, designed to assist workers who have lost
their jobs as a result of increased import competition from — or shifts in production to — other countries, by helping those workers “learn the new skills necessary to find productive employment in a changing American economy.” Former Employees of Chevron Prods. Co. v. U.S. Sec’y of Labor, 26 CIT 1272, 1273, 245 F.Supp.2d 1312, 1317 (2002) (quoting S.Rep. No. 100-71, at 11 (1987)).
The TAA program entitles eligible workers to receive benefits which may include employment services (such as career counseling, resume-writing and interview skills workshops, and job referral programs), vocational training, job search and relocation allowances, income support payments (known as “Trade Readjustment Allowance” or “TRA” payments), and a Health Insurance Coverage Tax Credit. See generally 19 U.S.C. § 2272 et seq. (2000 & Supp. II 2002). In addition, one of the newer features is the wage insurance benefit for older workers, known as Alternative Trade Adjustment Assistance (“ATAA”). ATAA allows eligible workers age 50 or older, for whom retraining may not be appropriate, to accept reemployment at a lower wage and receive a wage subsidy. See, e.g., Invista I, 33 CIT at - n. 2, 626 F.Supp.2d at 1304 n. 2; BMC I, 30 CIT at 1318 n. 5, 454 F.Supp.2d at 1309 n. 5.
TAA benefits historically have been viewed as the quid pro quo for U.S. national policies of free trade. See generally BMC I, 30 CIT at 1316, 454 F.Supp.2d at 1307-08 (and authorities cited there). As UAW v. Marshall explains, “much as the doctrine of eminent domain requires compensation when private property is taken for public use,” the trade adjustment assistance laws similarly reflect the country’s recognition “that fairness demand[s] some mechanism whereby the national public, which realizes an overall gain through trade readjustments, can compensate the particular ... workers who suffer a [job] loss.” UAW v. Marshall, 584 F.2d 390, 395 (D.C.Cir.1978). Absent TAA programs that are adequately funded and conscientiously administered, “the costs of a federal policy [of free trade] that confer[s] benefits on the nation as a whole would be imposed on a minority of American workers” who lose their jobs due to increased imports and shifts of production abroad. Id.
The TAA laws also have been compared to veterans’ benefits statutes:
The purpose of the [TAA statute] is to distribute benefits to American workers whose jobs have been shipped overseas, while the purpose of the [veterans’ benefits laws] ... is to distribute benefits to veterans who have been injured during service. Both are remedial acts designed to provide much needed aid.
Former Employees of Sonoco Prods. Co. v. Chao, 372 F.3d 1291, 1301 (Fed.Cir.2004) (Mayer, C.J., dissenting).
The analogy is an apt one. “[M]ueh as Congress has charged the U.S. Department of Veterans Affairs ... (VA’) with caring for those who have risked life and limb for our freedom, so too Congress has entrusted to the Labor Department the responsibility for providing training and other re-employment assistance to those who have paid for our place in the global economy with their jobs.” BMC I, 30 CIT at 1370, 454 F.Supp.2d at 1355 (footnote omitted); compare, e.g., 38 U.S.C. § 5103A (captioned “Duty to assist claimants,” obligating VA to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim” for veterans’ benefits) with 29 C.F.R. § 90.12 (Labor Department is obligated to “marshal all relevant facts” in making its TAA determinations).
And just as veterans’ benefits programs are designed to be extraordinarily “veteran-friendly” and “pro-claimant,” so too Congress designed TAA as a remedial program, recognizing that petitioning workers would be (by definition) traumatized by the loss of their livelihood; that some might not be highly-educated; that virtually all would be pro se; that none would have any mastery of the complex statutory and regulatory scheme; and that the agency’s process would be largely ex parte. Congress certainly did not intend the TAA petition process to be adversarial. Nor did Congress intend to cast the Labor Department as a “defender of the fund,” sitting passively in judgment, ruling “thumbs up” or “thumbs down” on whatever evidence the pro se petitioning workers might manage to present. Cf. Former Employees of IBM Corp., Global Services Division v. U.S. Sec’y of Labor, 29 CIT 951, 956, 387 F.Supp.2d 1346, 1351 (2005) (emphasizing that petitioning workers cannot reasonably be expected to have knowledge of the “sometimes esoteric criteria” for TAA certification).
Quite to the contrary, the Labor Department is charged with an affir motive obligation to proactively and thoroughly investigate all TAA claims filed with the agency — and, in the words of the agency’s own regulations, to “marshal all relevant facts” before making its determinations. See 29 C.F.R. § 90.12. Moreover, both “[b]ecause of the ex parte nature of the certification process, and the remedial purpose of the [TAA] program,” the agency is obligated to “conduct [its] investigation with the utmost regard for the interest of the petitioning workers.” Local 167, Int’l Molders and Allied Workers’ Union, AFL-CIO v. Marshall, 643 F.2d at 31 (emphasis added); see also Stidham v. U.S. Dep’t of Labor, 11 CIT 548, 551, 669 F.Supp. 432, 435 (1987) (citing Abbott v. Donovan, 7 CIT 323, 327-28, 588 F.Supp. 1438, 1442 (1984) (quotations omitted)); Former Employees of Int’l Business Machines Corp. v. U.S. Sec’y of Labor, 29 CIT 1360, 1362, 403 F.Supp.2d 1311, 1314 (2005) (“IBM I”) (quoting Stidham); Former Employees of Computer Sciences Corp. v. U.S. Sec’y of Labor, 29 CIT 426, 433, 366 F.Supp.2d 1365, 1371 (2005).
Thus, while the Labor Department is vested with considerable discretion in the conduct of its investigation of trade adjustment assistance claims, that discretion is by no means without bounds. Instead, “there exists a threshold requirement of reasonable inquiry.” Former Employees of Hawkins Oil & Gas, Inc. v. U.S. Sec’y of Labor, 17 CIT 126, 130, 814 F.Supp. 1111, 1115 (1993); see also, e.g., Former Employees of Electronic Data Sys. Corp. v. U.S. Sec’y of Labor, 29 CIT 1334, 1339, 408 F.Supp.2d 1338, 1342-43 (2005); Former Employees of Merrill Corp. v. United States, 31 CIT 415, 423, 483 F.Supp.2d 1256, 1264 (2007); Former Employees of Joy Techs., Inc. v. U.S. Sec’y of Labor, 31 CIT 1835, 1841, 523 F.Supp.2d 1369, 1376 (2007); Former Employees of Welex, Inc. v. U.S. Sec’y of Labor, 32 CIT -, -, 2008 WL 7020688 at * 2 (2008); Former Employees of Fairchild Semi-Conductor Corp. v. U.S. Sec’y of Labor, 32 CIT -, -, 2008 WL 1765519 at *3, 5 (2008).
Of course, the statute does not entitle every petitioning worker to be certified as eligible to apply for TAA/ATAA benefits. However, every worker is entitled to a thorough agency investigation of his or her claim — an investigation in which the Labor Department “marshal[s] all relevant facts,” and an investigation which the agency conducts with “the utmost regard” for the petitioning workers’ interests. See, e.g., Former Employees of Ameriphone, Ine. v. United States, 27 CIT 1611, 1618, 288 F.Supp.2d 1353, 1359-60 (2003); 29 C.F.R. § 90.12. The courts therefore have not hesitated to set aside agency determinations that were the product of perfunctory investigations. See generally BMC I, 30 CIT at 1321-22 & n. 10, 454 F.Supp.2d at 1312-13 & n. 10 (cataloguing sampling of opinions criticizing Labor Department’s handling of TAA cases); see also Welex, 32 CIT at -, 2008 WL 7020688 at *2; Joy Techs., 31 CIT at 1842, 523 F.Supp.2d at 1376.
2. The Government’s Position at the Administrative Level
The Government maintains that the Labor Department’s position at the administrative level was substantially justified because it “was reasonably based upon evidence in the administrative record as it existed at the time, as well as controlling precedent” from the Court of Appeals. Def.’s Response at 6-7. According to the Government, an award of fees and expenses is not warranted because — the Government asserts — the Labor Department “examined the evidence before it, applied what it considered to be the appropriate legal standard, and provided an analysis based upon the facts and law as it understood them.” See Def.’s Response at 7. However, the Government fails to address a number of salient points.
a. The Agency’s Failure to Consider Amending the 2001 TAA/ATAA Certification
As a threshold matter, the Labor Department repeatedly failed even to consider — much less investigate — the theory under which the Workers here were ultimately certified. In other words, although Invista’s Plant Manager and the Workers themselves emphasized from the outset that the terminations at issue were attributable to the 2004 shift of production to Mexico, and although the agency had a practice of amending TAA/ATAA certifications in circumstances comparable to the situation here, the Labor Department nevertheless repeatedly failed to consider the possibility of amending the 2004 TAA/ATAA certification to extend coverage to the Workers in this case— first in the agency’s initial investigation, then again in the agency’s consideration of the Workers’ Request for Reconsideration, and once more in the course of the first remand (i.e., the voluntary remand). See, e.g., A.R. 2 (Plant Manager’s sworn statement attesting that the Workers’ terminations were “a continuation of the [2004] shift in production to Mexico”); Invista I, 33 CIT at - & n. 5, 626 F.Supp.2d at 1309 & n. 5 (citing sampling of cases where TAA/ATAA certifications were amended in comparable situations).
Only after the agency was specifically instructed to do so did the Labor Department finally consider amending the prior TAA/ATAA certification — and it was on that basis that the agency ultimately certified the Workers. See Invista I, 33 CIT at -, 626 F.Supp.2d at 1311 (remanding matter to agency with instructions to, inter alia, “consider all legal theories under which the petitioning Workers might be eligible for certification, including the possible amendment of the 2004 TAA/ATAA certification”); 74 Fed.Reg. 51,195 (Second Remand Determination, certifying Workers for TAA/ATAA). Nowhere has either the Labor Department or the Government sought to explain why the agency failed for so long to consider amending the 2004 TAA/ATAA certification until expressly ordered to do so by the court.
b. The Agency’s Reliance on the One-Year Limitation in 29 C.F.R. § 90.2
The Labor Department and the Government are similarly silent on the Labor Department’s repeated invocation of the one-year limitation in 29 C.F.R. § 90.2, the regulation on which the agency relied in denying the Workers’ TAA/ATAA Petition, as well as their subsequent Request for Reconsideration. See 72 Fed.Reg. 7907, 7909 (Feb. 21, 2007) (notice of denial of petition); 72 Fed.Reg. 15,169 (March 30, 2007) (notice of denial of request for reconsideration); 29 C.F.R. § 90.2 (specifying one-year limitation applicable in TAA/ ATAA cases involving allegations of “increased imports”). However, the pertinent provision of that regulation is expressly and unequivocally limited — on its face — -to cases where layoffs result from “increased imports.” See Invista I, 33 CIT at -, 626 F.Supp.2d at 1307 (summarizing history of case, including Government’s request for voluntary remand); 29 C.F.R. § 90.2 (specifying one-year limitation applicable in TAA/ATAA cases involving allegations of “increased imports”). Neither the Labor Department nor the Government has ever sought to argue that the agency was somehow justified in relying on that provision of the regulation in “shift of production” cases such as this. Nor could they credibly do so.
In its response to the Workers’ EAJA Application, the Government takes the position that such an award is not appropriate if the agency’s “position at the administrative level[] had a reasonable basis in both law and fact.” See Def.’s Response at 9-10 (emphases added). Assuming that is in fact a fair statement of the applicable standard, the Government has not made — ■ and cannot make — the requisite showing. As outlined above, there is no dispute that the Labor Department twice rejected the Workers’ claims based on an agency regulation which was, on its face, patently inapplicable to the facts of this case, while, at the same time, the agency failed over and over again to even consider (much less investigate) the possibility of amending the prior TAA/ATAA certification to extend coverage to the Workers here — the legal theory under which the Workers were ultimately certified. Given these two flagrant legal errors, there simply can be no claim that there was “a reasonable basis in ... [the] law” for the Labor Department’s position at the administrative level in this case. These grounds alone would warrant a determination that the United States’ position was not substantially justified,
c. The Record Basis for the Agency’s Determinations
Other aspects of the Government’s position are similarly lacking in merit. For example, the Government’s constant refrain is that the Labor Department’s three negative determinations in this matter— i.e., the agency’s initial denial of the Workers’ TAA/ATAA Petition, its denial of the Workers’ Request for Reconsideration, and its denial following the first (voluntary) remand — were each “reasonably based upon evidence in the administrative record as it existed at the time,” and that the agency simply “examined the evidence before it” in reaching each of its determinations. See Def.’s Response at 6-7 (emphasis added). As discussed above, however, the Labor Department’s first two determinations were wrong as a matter of law, because they were predicated on a regulatory provision applicable only in cases involving “increased imports.” See A.R. 31 (denying TAA/ATAA Petition because Workers “were not in support of domestic production” of apparel fiber “within the requisite one year period”); A.R. 45-46 (denying Request for Reconsideration, and affirming basis for original denial); 29 C.F.R. § 90.2. Accordingly, at least with respect to the first two of the Labor Department’s four investigations, it is of no moment whether or not the agency’s determinations were, as the Government claims, “based upon [the] evidence in the administrative record as it existed at the time.” See Def.’s Response at 6-7. As a practical matter, the Labor Department’s legal error in erroneously relying on 29 C.F.R. § 90.2 rendered any facts— i.e., the record evidence — immaterial.
Even more fundamentally, the Government’s assertion that the Labor Department’s determinations were “reasonably based upon evidence in the administrative record as it existed at the time” (see Def.’s Response at 6-7 (emphasis added)) fails to take into account the Labor Department’s basic, affirmative obligation to investigate TAA and ATAA claims. Nowhere does the Government recognize and address the Labor Department’s bedrock obligation in TAA/ATAA cases to affirmatively develop the administrative record — by “marshaling] all relevant facts” and “conduct[ing][its] investigation with the utmost regard for the interest of the petitioning workers.” See generally section II.A.1, supra (summarizing, inter alia, agency’s affirmative obligation to proactively investigate TAA/ATAA claims); 29 C.F.R. § 90.12 (requiring agency to “marshal all relevant facts” before making determinations in TAA/ATAA cases); Local 167, Int’l Molders and Allied Workers’ Union, AFL-CIO v. Marshall, 643 F.2d at 31 (emphasis added) (recognizing agency’s obligation to conduct TAA investigations “with the utmost regard for the interest of the petitioning workers”).
“While ‘[t]he EAJA does not tell an agency how to handle a case,’ the agency ‘cannot decline to conduct further inquiry and then plead [its] own failure to investigate as reason to conclude that [its] position was substantially justified.’ ” Former Employees of BMC Software, Inc. v. U.S. Sec’y of Labor, 31 CIT 1600, 1625, 519 F.Supp.2d 1291, 1312 (2007) (“BMC II”) (quoting Hess Mech. Corp. v. NLRB, 112 F.3d 146, 150 (4th Cir.1997)). That is, in essence, what the Government and the Labor Department have sought to do here, by attempting to justify the agency’s determinations by relying on the administrative record “as it existed at the time,” without acknowledging that the agency had an affirmative legal obligation to proactively develop that record. The plaintiff workers in another TAA case cogently underscored this point:
[I]t is precisely Labor’s failure to investigate and form a sufficient record that is without substantial justification.... ... If Labor could argue that its legal positions were substantially justified whenever it evaluates what is in the record, no matter how limited or inadequate that record, it would create a dangerous incentive for administrative agencies to engage in even more perfunctory investigations than is already the case....
This absurd result is no straw man. [The Government’s] Response admits that Labor essentially chose to stay ignorant of facts that were clearly discoverable through a modicum of investigation. ...
In essence, [the Government] suggests that Labor’s legal positions were substantially justified even though they relied on an administrative record that lacked essential, readily-available information, because the jobless TAA petitioners were responsible for spoon-feeding Labor ... all relevant information.
BMC II, 31 CIT at 1625 n. 27, 519 F.Supp.2d at 1312 n. 27 (emphasis and alterations in the original).
In the case at bar, the Labor Department plainly failed to properly develop the administrative record as to the relationship between the Workers’ terminations and the 2004 shift of production to Mexico. The Labor Department based its first two determinations on 29 C.F.R. § 90.2 and the agency’s finding that apparel fiber had not been produced at Invista’s Chattanooga plant since August 2004. As discussed above, the Labor Department’s erroneous application of a “one-year rule” to these facts resulted in the wrongful denial of both the Workers’ TAA/ATAA Petition and their Request for Reconsideration. See A.R. 31; A.R. 45-46; 29 C.F.R. § 90.2. Relying on the “one-year rule,” the Labor Department therefore paid no heed to the existing record evidence that the Workers’ separations were the direct result of the 2004 shift of production to Mexico (which, in turn, had led to the 2004 TAA/ATAA certification). That evidence was not controverted. See, e.g., A.R. 2 (stating that the Workers’ separations were “a continuation of the shift in production to Mexico” which was the subject of the 2004 eertification). Similarly uncontroverted was record evidence establishing that the Workers were being replaced by personnel in South America. See, e.g., A.R. 2 (stating that “[t]he Customer Service Representatives (CSR’s) losing their job[s] are being replaced by CSR’s located in South America”).
When the Labor Department’s request for a voluntary remand was granted (and the agency abandoned its reliance on 29 C.F.R. § 90.2 and the fact that production of apparel fibers had ceased at the Chattanooga facility more than one year before the Workers’ terminations), the Labor Department assertedly sought to focus for the first time on the relationship between the Workers’ termination and the 2004 shift of production to Mexico. However, rather than analyzing and further developing the existing ample and uncontroverted record evidence on that point (summarized above), the Labor Department instead opted to premise its remand determination largely on the negative response of an Invista lawyer to a single question which was framed in terms of the “ultimate fact” to be determined by the agency: “Was the business decision to reorganize the Customer Service Organization [which led to the separation of the Workers here] the result of the shift of production [to Mexico] two years earlier?” See S.A.R. 17-18; 73 Fed.Reg. at 32,739-40.
In short, notwithstanding its obligations to conduct its investigation with “the utmost regard” for the interests of the Workers and to “marshal all relevant facts” in reaching its determination on the Workers’ TAA/ATAA Petition, the Labor Department ignored all other (previously uncontroverted) evidence of the causal relationship between the Workers’ termination and the 2004 shift of production to Mexico, and instead chose to rely on the Invista lawyer’s conclusory response to a single question as a basis for denying the Workers’ claims yet again. See 73 Fed.Reg. at 32,739-40 (concluding that Invista’s “shift of nylon apparel filament production to Mexico was not a factor in the subject workers’ separations”).
Incredibly, even now, the Government maintains that there was “no record evidence, at the time, to contradict [the] statement [of the Invista lawyer].” See Def.’s Response at 13; see also id. at 12 (asserting that, at the time that the Invista lawyer made her statement, “it was not contradicted by any other evidence”). As discussed at some length herein, the statement of the Invista lawyer was squarely contradicted by much of the other record evidence on point — including, in particular, the sworn statement of Invista’s Chattanooga Plant Manager. See A.R. 2. If — as the Government says — “Labor found no record evidence, at the time, to contradict [the] statement [of the Invista lawyer]” (see Def.’s Response at 13), then the agency simply was not looking. Cf. Joy Techs., 31 CIT at 1839-41, 1843, 1846, 523 F.Supp.2d at 1375-76, 1378, 1379-80 (criticizing agency for failing to recognize as “record evidence” statements submitted by petitioning workers addressing, inter alia, facts surrounding shift of production to Mexico).
In any event, the Labor Department made no attempt to confront the Invista lawyer with the ample record evidence tying the Workers’ terminations to the 2004 shift of production to Mexico. The Invista lawyer thus had no opportunity to refine or clarify her statement to the agency; and the Labor Department had no basis for reconciling her statement with the numerous earlier statements to the contrary. Similarly, the Labor Department made no effort to use the statement of the Invista lawyer to confront those who had earlier given the agency statements linking the Workers’ separations to the 2004 shift of production. Those individuals therefore had no opportunity to refine or clarify their statements, and the Labor Department had no basis for reconciling their statements with the conflicting statement given by the Invista lawyer. See generally Invista I, 33 CIT at - n. 6, 626 F.Supp.2d at 1310 n. 6 (criticizing agency for failure to “confront sources with conflicting information provided by others,” thereby “depriving [the sources] of the opportunity to clarify discrepancies, and diminishing the usefulness of the information elicited by the agency”).
In short, not only did the Labor Department fail to state on the record any rationale for privileging the single, conclusory statement made by the Invista lawyer over the numerous statements to the contrary given by other individuals, but — in fact — the administrative record is devoid of anything on which the agency could have based such a statement of rationale. In TAA/ATAA investigations, the Labor Department is obligated to develop a proper record by seeking to reconcile conflicting evidence on key points before the agency reaches a determination on petitioning workers’ claims. See Welex, 32 CIT at — -, 2008 WL 7020688 at * 9-11 (faulting agency for its failure to identify and resolve discrepancies and inconsistencies in record evidence); Former Employees of Elec. Mobility Corp. v. U.S. Sec’y of Labor, 32 CIT -, -, 2008 WL 7020689 at *4-6 (2008) (same); BMC I, 30 CIT at 1335-39, 454 F.Supp.2d at 1324-28 (same). Further, contrary to the Government’s implication, no agency is free to pick and choose, willy-nilly, the evidence on which it will rely to reach a key determination without offering at least some explanation of the basis for its decision to credit certain information over other conflicting evidence in the administrative record. See generally Invista I, 33 CIT at - n. 6, 626 F.Supp.2d at 1310 n. 6 (criticizing “the agency’s failure to explain why it credited some sources of information and rejected other information”); Former Employees of Int’l Business Machines Corp. v. U.S. Sec’y of Labor, 31 CIT 463, 508-10, 483 F.Supp.2d 1284, 1324-26 (2007) (“IBM II”) (emphasizing that, in reaching TAA/ATAA determination, “substantial evidence” standard requires agency to take into consideration all evidence that “fairly detracts” from its determination) (discussing Consol. Bearings Co. v. United States, 412 F.3d 1266, 1269 (Fed.Cir.2005); Gerald Metals, Inc. v. United States, 132 F.3d 716, 720 (Fed.Cir.1997)); Inter-Neighborhood Hous. Corp. v. NLRB, 124 F.3d 115, 122 (2d Cir.1997) (finding lack of substantial justification where, in declining to investigate further, agency investigator must have concluded that a witness was lying and falsifying documents, but where administrative record included “no basis for such conclusions”).
Moreover, it is manifestly clear that there is no reason why the Labor Department could not have earlier obtained the information on which it ultimately based its certification of the Workers here. The evidence which caused the agency to reverse course (and thus to certify the Workers) was information supplied in an August 2009 phone conversation between agency staffers and Invista’s former Chief Legal Counsel for Labor and Employment (who, in 2008, had become Associate General Counsel for Labor and Employment at a Koch “shared service organization” supporting Invista and other Koch-affiliated companies). See S.S.A.R. 69-70. However, that conversation simply reaffirmed what the Workers (and, indeed, several representatives of Invista, including Invista’s Chattanooga Plant Manager) had been telling the agency all along — that is, that the Workers’ terminations “were a direct (albeit delayed) result of the 2004 shift of apparel fiber production to Mexico.” See Invista II, 33 CIT at -, 657 F.Supp.2d at 1364. Nothing in that August 2009 phone conversation should have been a revelation to the Labor Department. Indeed, the information provided in the phone conversation was almost entirely cumulative of other evidence in the record, dating back to the initiation of the original investigation. Nowhere does either the Labor Department or the Government identify any “new information” garnered in that conversation which the agency could not have obtained much earlier. See, e.g., Pierce v. Underwood, 487 U.S. at 560, 108 S.Ct. 2541 (explaining that, in evaluating “substantial justification,” trial court is entitled to take into consideration “insights not conveyed by the record,” including “whether critical facts could easily have been verified by the Government”); see also section II.A & n. 11, supra (collecting additional cases on point).
d. The Agency’s Delegation of Authority
Invista I identified other significant flaws in the Labor Department’s investigation as well. See generally Invista I, 33 CIT at -, 626 F.Supp.2d at 1310-11. As the Government notes, for example, Invista I criticized the Labor Department for — in essence — “delegating] to the In-vista [lawyer] the power to decide the Workers’ TAA/ATAA petition.” See Def.’s Response at 12; Invista I, 33 CIT at -, 626 F.Supp.2d at 1310. After referring to that criticism in Invista I, however, the Government proceeds to brief an entirely different matter. In other words, in its Response, the Government completely misses the point. Rather than arguing whether it is permissible for the Labor Department to (in effect) base its determination in a TAA/ATAA case on a source’s conclusory response to the “ultimate question” (which is the “delegation” concern to which the Government briefly refers), the Government’s Response instead proceeds to argue that the Labor Department was entitled to rely on statements made by representatives of the Workers’ former employer. That is a different issue.
The confusion on the part of the Government leaves uncontested and intact Invista I’s conclusion that “[t]he Labor Department erred by substituting [the Invista lawyer’s] conclusory opinion for [the agency’s] own probing inquiry into all the relevant underlying facts concerning the relationship between the 2004 shift in production to Mexico and the Workers’ subsequent terminations.” See Invista I, 33 CIT at-, 626 F.Supp.2d at 1310. As Invista I explained, the only real issue for decision by the Labor Department in this case was whether the Workers’ termination was “attributable to” the 2004 shift of production to Mexico (i.e., the basis for the 2004 TAA/ATAA certification). Thus, by asking the Invista lawyer whether the company’s “business decision” to reorganize its customer service organization and terminate the Workers was “the result of the shift of production two years earlier”:
... the Labor Department, in effect, asked the Invista [lawyer] ... the “ultimate question.” In essence, the agency delegated to the Invista representative the power to decide the Workers’ TAA/ ATAA petition. But “it is Labor’s responsibility, not the responsibility of [a] company official, to determine whether a former employee is eligible for [TAA/ATAA] benefits.”
Invista I, 33 CIT at-, 626 F.Supp.2d at 1310 (quoting BMC I, 30 CIT at 1340, 454 F.Supp.2d at 1328 (quotation omitted)). The same agency practice has been roundly condemned in a number of other cases as well. See, e.g., BMC I, 30 CIT at 1339— 41, 454 F.Supp.2d at 1328-29 (cataloguing wide range of TAA/ATAA opinions criticizing agency for phrasing questions posed to sources/contacts in terms of “ultimate facts,” and thereby — in effect — -impermissibly delegating the agency’s power to decide petitioning workers’ claims and abdicating agency’s responsibility to conduct its own independent factual investigations and to reach its own independent legal conclusions).
e. The Agency’s Reliance on Invista’s Lawyer’s Statement
Rather than briefing the “delegation” issue which it raises, the Government invokes Court of Appeals precedent including Barry Callebaut and Marathon Ash-land Pipe Line, and argues at some length that the Labor Department was entitled to rely on the statement of the Invista lawyer to conclude (in the course of the voluntary remand proceeding) that the Workers were not entitled to TAA/ATAA certification. See generally Def.’s Response at 12-13 (citing Former Employees of Barry Callebaut v. Chao, 357 F.3d 1377 (Fed.Cir.2004); Former Employees of Marathon Ashland Pipe Line, LLC v. Chao, 370 F.3d 1375 (Fed.Cir.2004)). The Government’s argument misses the mark, in several significant respects.
First, although decisions in some other TAA/ATAA cases have criticized the Labor Department’s tendency to accept on faith virtually anything an employer says (while discounting or disregarding the information provided by petitioning workers), that specific criticism was not raised in either Invista I or Invista II. Compare, e.g., Welex, 32 CIT at -, 2008 WL 7020688 at * 11-12 (analysis captioned “The Labor Department’s Over-Reliance on Employer-Provided Information”); BMC I, 30 CIT at 1339-49, 454 F.Supp.2d at 1328-37 (same); with Invista I, 33 CIT -, 626 F.Supp.2d 1301, and Invista II, 33 CIT -, 657 F.Supp.2d 1359. The Government’s argument thus targets a “straw man.”
Moreover, contrary to the Government’s implications, Barry Callebaut and Marathon Ashland Pipe Line have little (if any) application here, given the circumstances of this case. As the Government emphasizes, the Court of Appeals concluded in Barry Callebaut and Marathon Ashland Pipe Line that the Labor Department is entitled to rely upon information provided by the former employers of petitioning workers in TAA/ATAA cases — but only where (1) “the Secretary reasonably concludes that [the employer’s] statements are creditworthy,” and (2) the employer’s statements “are not contradicted by other evidence.” See Def.’s Response at 12-13 (quoting Marathon Ashland Pipe Line, 370 F.3d at 1385 (citing Barry Callebaut, 357 F.3d at 1383)) (internal quotation marks omitted) (alteration in original).
Neither condition is met in this case. As discussed in some detail above, the administrative record is devoid of any explanation to support a Labor Department conclusion that the statement of the Invista lawyer was — in the words of the Court of Appeals — “creditworthy.” And, even more to the point (and the Government’s assertions notwithstanding), the statement of the Invista lawyer was indisputably “contradicted by other evidence” already in the administrative record.
The Government inexplicably asserts that, at the time it was made, the statement of the Invista lawyer “was not contradicted by any other evidence.” See Def.’s Response at 12; see also id. at 13 (asserting that there was “no record evidence, at the time, to contradict Invista’s statement”). To the contrary, that statement was in direct conflict with ample existing record evidence that the Workers’ terminations were directly attributable to the 2004 shift of production to Mexico— including, most notably, the sworn statement of Invista’s own Chattanooga Plant Manager. In the TAA/ATAA Petition itself, the Invista Plant Manager attested in no uncertain terms that the Workers’ separations were “a continuation of the [2004] shift in production to Mexico” (which, in turn, had led to the 2004 TAA/ATAA certification). See A.R. 2 (statement of Invista’s Chattanooga Plant Manager, made under oath/affirmation, including warning of federal penalties for, inter alia, violations of federal material false statements statute; declaring “[u]nder penalty of law, ... that to the best of [his] knowledge and belief the information ... provided is true, correct and complete”); see also id. (further attesting that the Workers “losing their job[s] are being replaced by CSR’s [Customer Service Representatives] located in South America”).
Under these circumstances, it is difficult enough to fathom how the Labor Department could ignore the ample record evidence existing at the time, and — without seeking to reconcile the contradictory accounts' — simply choose to credit the conflicting statement given by the Invista lawyer. But the repeated assertions in the Government’s Response that there was “no record evidence, at the time, to contradict Invista’s [lawyer’s] statement” are simply baffling.
In sum, Marathon Ashland Pipe L