E5-1345. Citation Corporation, Camden, TN; Notice of Negative Determination on Reconsideration on Remand

The United States Court of International Trade (USCIT) granted the Secretary of Labor's motion for a voluntary remand in Former Employees of Citation Corporation v. Elaine Chao, U.S. Secretary of Labor, Court No. 04-00198, on February 7, 2005. The Department of Labor (Department) requested the remand to clarify the basis for its denial of the Trade Adjustment Assistance (TAA) petition dated December 9, 2003, filed by the Tennessee AFL-CIO on behalf of workers of the subject firm.

The Department terminated the investigation of TA-W-53,753 because no new information or change in circumstance was evident which would have resulted in the reversal of a previous negative determination applicable to the same worker group (TA-W-51,871, denied on June 16, 2003). The Notice of Termination was issued on December 11, 2003 and published in the Federal Register on January 7, 2004 (69 FR 940).

By letter dated February 5, 2004, the union representative requested administrative review of the Department's action regarding the subject worker group.

By letter dated March 17, 2004, the Department dismissed the request for reconsideration. The Dismissal of Application for Reconsideration was issued on March 30, 2004 and published in the Federal Register on April 6, 2004 (69 FR 18107).

On May 12, 2004, the Plaintiff applied to the USCIT for judicial review, asserting that the Department's determination regarding petitioners TA-W-51,871 and TA-W-53,753 were in error.

Petitioners have sixty days from the date the Department's determination is published in the Federal Register to file for judicial review. The determination regarding TA-W-51,871 was published in the Federal Register on July 3, 2003 (68 FR 39976). The period to seek judicial review of TA-W-51,871 expired on September 1, 2003. Because the Plaintiff did not file an appeal with the USCIT until May 12, 2004, the determination regarding TA-W-51,871 is final and not subject to judicial review. Therefore, the issue before the USCIT is whether the Department's decision to terminate the investigation for TA-W-53,753 was in error.

A careful review of the documents reveals that both the worker group and the circumstance of the workers' separations in TA-W-53,753 and TA-W-51,871 are the same. Both petitions were filed on behalf of the same worker group, 226 employees of Citation Corporation in Camden, Tennessee and the same circumstance, the closing of the plant on December 12, 2002.

Since the same worker group and circumstance causing the workers' separation had been investigated and a final decision denying certification had been issued in TA-W-51,871, the termination of the investigation of TA-W-53,753 was proper in order to preserve administrative resources. Petitioners had an opportunity to timely seek judicial review of TA-W-51,871 and failed to do so. It would be inappropriate for petitioners to evade the consequences of their failure timely seek judicial review by merely filing an identical petition.

Conclusion

After reconsideration on remand, I affirm the original notice of negative determination of eligibility to apply for adjustment assistance for workers and former workers of Citation Corporation, Camden, Tennessee.

Signed at Washington, DC, this 9th day of March 2005.

Elliott S. Kushner,

Certifying Officer, Division of Trade Adjustment Assistance.