Former Employees of AT&T Services, Inc., through Communications Workers of America Local 4123 v. United States Secretary of Labor

Slip Op. 21-53
UNITED STATES
COURT OF INTERNATIONAL TRADE
Court No. 20-00075
COMMUNICATIONS WORKERS OF AMERICA
LOCAL 4123, on behalf of FORMER EMPLOYEES
OF AT&T SERVICES, INC.,
Plaintiff,
v.
U.S. SECRETARY OF LABOR,
Defendant.
Before: M. Miller Baker, Judge
OPINION
[Plaintiff’s motion for judgment on the agency record
is granted and this matter is remanded to the Depart-
ment of Labor for further consideration.]
Dated: May 4, 2021
Devin S. Sikes, Akin Gump Strauss Hauer & Feld LLP
of Washington, DC, argued for Plaintiffs. With him on
the brief were Bernd G. Janzen and Tebsy Paul.
Ashley Akers, Trial Attorney, Commercial Litigation
Branch, Civil Division, U.S. Department of Justice of
Washington, DC, argued for Defendant. With her on
the brief were Jeffrey Bossert Clark, Acting Assistant
Attorney General; Jeanne E. Davidson, Director; and
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 1 of 32

Court No. 20-00075 	Page 2
Patricia M. McCarthy, Assistant Director. Of counsel
on the brief was Tecla A. Murphy, Attorney Advisor,
Employment and Training Legal Services, Office of the
Solicitor, U.S. Department of Labor of Washington,
DC.
Baker, Judge: Several decades ago, Congress estab-
lished a remedial program to provide benefits to Amer-
ican workers displaced by the offshoring of manufac-
turing or service jobs. See Former Emps. of BMC Soft-
ware, Inc. v. U.S. Sec’y of Labor, 454 F. Supp. 2d 1306,
1307 (CIT 2006) (“Trade adjustment assistance . . .
programs historically have been—and today continue
to be—touted as the quid pro quo for U.S. national pol-
icies of free trade.”). In this case, a union challenges
the Labor Department’s denial of benefits to former
AT&T call center employees under that program. The
Court agrees with the union that Labor’s summary de-
nial of benefits is not supported by substantial evi-
dence, and remands for further proceedings consistent
with this opinion.
Statutory and Regulatory Background
In the Trade Act of 1974, Congress updated a preex-
isting mechanism for providing benefits—referred to
as “trade adjustment assistance”—to Americans who
lose their jobs, or whose work hours and pay are re-
duced, due to foreign trade. See 19 U.S.C. § 2271 et
seq.; see also U.S. Dep’t of Labor, Getting Back to Work
After 	a 	Trade 	Related 	Layoff, 	at 	2,
https://www.dol.gov/sites/dolgov/files/ETA/tradeact
/pdfs/program_brochure2014.pdf 	(accessed 	May 	3,
2021).
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 2 of 32

Court No. 20-00075 	Page 3
Under that statute, a group of workers in the same
firm, their union, or their authorized representative
may petition the Department of Labor to certify them
as eligible to apply for trade adjustment assistance
benefits and services. See 19 U.S.C. § 2271(a)(1); see
also Getting Back to Work, above. Once Labor receives
a petition, it investigates whether the circumstances
of the workers’ layoff satisfy certain statutory criteria.
See Getting Back to Work, above.
As relevant here, those criteria are as follows:
(a) In general
A group of workers shall be certified by the Sec-
retary as eligible to apply for adjustment assis-
tance under this part . . . if the Secretary deter-
mines that—
(1) a significant number or proportion of the
workers in such workers’ firm have become to-
tally or partially separated, or are threatened to
become totally or partially separated; and
(2) … (B)
(i)
(I) there has been a shift by such workers’
firm to a foreign country in the production
of articles or the supply of services like or
directly competitive with articles which
are produced or services which are sup-
plied by such firm; or
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 3 of 32

Court No. 20-00075 	Page 4
(II) such workers’ firm has acquired from
a foreign country articles or services that
are like or directly competitive with arti-
cles which are produced or services which
are supplied by such firm; and
(ii) the shift described in clause (i)(I) or the
acquisition of articles or services described in
clause (i)(II) contributed importantly to such
workers’ separation or threat of separation.
19 U.S.C. § 2272(a).
Thus, as relevant here, for a group of workers to re-
ceive certification of eligibility for trade adjustment as-
sistance, they must satisfy §§ 2272(a)(1) (show that
they were separated), (a)(2)(B)(i) (show that the ser-
vices 	they 	formerly 	provided 	are 	now 	provided
abroad), and (a)(2)(B)(ii) (show that the foreign provi-
sion of such services “contributed importantly” to their
separation). The dispute here involves Labor’s deter-
mination regarding the second of these requirements.
In determining whether to certify a group of work-
ers as eligible under these criteria, Labor must “obtain
from the workers’ firm . . . information the Secretary
determines to be necessary to make the certification,
through questionnaires and in such other manner as
the 	Secretary 	determines 	appropriate.” 	19 	U.S.C.
§ 2272(d)(1). The statute directs the Secretary to re-
quire a firm to “certify” all information submitted in
response to questionnaires. Id. § 2272(d)(3)(A)(i). The
Secretary must also require certification of all other
information obtained from a firm or a customer “on
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 4 of 32

Court No. 20-00075 	Page 5
which the Secretary relies in making a[n eligibility]
determination . . . , unless the Secretary has a reason-
able basis for determining that such information is ac-
curate 	and 	complete 	without 	being 	certified.” 	Id.
§ 2272(d)(3)(A)(ii).1
Labor’s regulations require the Department to is-
sue either a certification of eligibility or a notice of neg-
ative determination specifying the reasons for the neg-
ative decision, and in either case to publish in the Fed-
eral Register a summary of the determination and the
reasons for making it. 29 C.F.R. § 90.16(c), (f). If Labor
returns an affirmative determination, the Department
also issues a “certification of eligibility” allowing the
workers to apply individually for benefits and services.
Id. § 90.16(c); see also Getting Back to Work, above
(“Workers in a certified group . . . may apply for indi-
vidual eligibility for benefits and services.”). If Labor
returns a negative determination, the workers may
1 The statute grants the Secretary broad authority to seek
“additional information” by contacting, inter alia, officials
or employees of the workers’ firm (apparently in their indi-
vidual capacity rather than as representatives of the firm),
officials of the workers’ firm’s customers, or union officials
or other “duly authorized representatives of the group of
workers.” Id. § 2272(d)(2)(A)(i)–(iii). The Secretary may
also “us[e] other available sources of information.” Id.
§ 2272(d)(2)(B). Unlike information obtained directly from
the workers’ firm, Labor need not require certification of
such additional information or find a reasonable basis for
relying upon such noncertified information.
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 5 of 32

Court No. 20-00075 	Page 6
ask 	the 	Department 	to 	reconsider. 	See 	generally
29 C.F.R. § 90.18.2
Following a final negative determination, a worker,
a group of workers, a certified or recognized union, or
the group’s authorized representative may commence
a civil action in this Court for review of the determina-
tion. See 19 U.S.C. § 2395(a).
Factual and Procedural Background
A. The union’s petition for benefits
In March 2019, Communications Workers of Amer-
ica Local 4123 filed a petition for trade adjustment
benefits on behalf of AT&T “Consumers Group” em-
ployees at the Kalamazoo (Michigan) Lovell Call Cen-
ter. AR3. The petition alleged that AT&T established
call centers in multiple foreign locations, including
Mexico, the Philippines, and the Caribbean, and that
during 2019 AT&T planned to close the Kalamazoo
call center and four other call centers operated by the
company. AR3–4.3 Thereafter, Labor agreed to deem
the petition as also encompassing the four other call
2 Reconsideration may be granted in three circumstances:
“(1) If it appears on the basis of facts not previously consid-
ered that the determination complained of was erroneous;
(2) If it appears that the determination complained of was
based on mistake in the determination of facts previously
considered; or (3) If, in the opinion of the certifying officer,
a misinterpretation of facts or of the law justifies reconsid-
eration of the determination.” 29 C.F.R. § 90.18(c).
3 Citations to “AR” refer to the public version of the admin-
istrative record, ECF 15.
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 6 of 32

Court No. 20-00075 	Page 7
centers (in Appleton, Wisconsin; Indianapolis, Indi-
ana; Syracuse, New York; and Meriden, Connecticut).
AR14–15.
In support of its petition, the union submitted its
own “AT&T Jobs Report” asserting that the company
closed multiple call centers and laid off several thou-
sand workers while shifting work to lower-wage con-
tract workers, many of them located abroad. AR20.
The report identified the Indianapolis, Kalamazoo,
and Appleton call centers as locations facing imminent
closure. 	AR20. 	The 	union 	further 	contended 	that
AT&T opened a call center in Mexico and planned to
expand it by moving jobs away from U.S.-based loca-
tions. AR22.
B. Labor’s initial investigation and report
Following receipt of the petition, Labor contacted
AT&T officials and asked that they complete question-
naires relating to the five call centers identified by the
union. AR26–35, AR38–42, AR43–45.4
4 The questionnaires requested certifications under pen-
alty of law for false statements and warned:
Knowingly falsifying any information on this form is a
Federal offense (18 U.S.C. § 1001) and a violation of the
Trade Act (19 U.S.C. § 2316). By signing below, you
agree to the following statement: “Under penalty of
law, I declare that to the best of my knowledge and be-
lief the information I have provided on this form is true,
correct, and complete.”
AR57 (Appleton), AR67 (Indianapolis), AR76 (Kalamazoo),
AR98 (Meriden), and AR112 (Syracuse).
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 7 of 32

Court No. 20-00075 	Page 8
Among other things, the questionnaire responses
specifically addressed the reasons for the call center
closures and the potential loss of jobs. AT&T stated
that three of the call centers closed because they were
being consolidated into other domestic call centers.
AR53 (Appleton), AR63 (Indianapolis), AR73 (Kalama-
zoo). AT&T stated that the other two call centers
closed because their operations were being moved to
other domestic locations. AR92 (Meriden), AR106 (Sy-
racuse). For all five call centers, AT&T emphasized
that displaced employees were offered the opportunity
to move to the new call center locations or to train for
alternative positions and further emphasized that all
work 	was 	remaining 	in 	the 	United 	States. 	AR53,
AR63, AR73, AR92, AR106.
Following AT&T’s submission of the questionnaire
responses, Labor’s investigator e-mailed AT&T’s in-
house counsel a series of informal follow-up questions.
The transmittal e-mail stated that the union had iden-
tified (1) an individual who worked in Jamaica but re-
ported to a manager in the Appleton call center and (2)
an individual who worked in the Philippines but re-
ported to a manager in Brecksville, Ohio, “which is an-
other location that has laid off hundreds of Union
workers.” 	AR114 	(quoting 	the 	union’s 	allegations).
Based on that information and on AT&T’s question-
naire responses, Labor asked AT&T whether the alle-
gations that foreign workers were supervised by U.S.
managers were true; if so, AT&T was to answer a se-
ries of further questions. AR114.
AT&T’s in-house counsel responded—in the same
informal e-mail format as Labor’s inquiries—that the
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 8 of 32

Court No. 20-00075 	Page 9
allegations were not true and that the foreign workers
were employed by vendors, supervised by vendor man-
agers, and handled calls that were never serviced by
employees in the Kalamazoo, Appleton, or Indianapo-
lis call centers. AR122; see also AR126 (response for
Syracuse and Meriden that referred to the response for
the other three centers).
Following the receipt of AT&T’s e-mail responses to
the investigator’s inquiries, someone at Labor—pre-
sumably the investigator—prepared an unsigned “in-
vestigative report” that determined that the loss of
jobs at the five call center locations was not attributa-
ble to the company’s offshoring of the work. AR141 et
seq. The report summarized the factual record dis-
cussed above and stated that AT&T “reported that
they have not shifted the supply of services like or di-
rectly competitive to those of the workers to a foreign
country nor acquired any services like or directly com-
petitive to those of the workers from a foreign coun-
try.” AR149. The report also quoted AT&T’s statement
about the two workers in Jamaica and the Philippines
and did not address the point further. AR150.
C. Labor’s initial negative determination
Following the investigative report, Labor issued a
“Negative Determination Regarding Eligibility to Ap-
ply for Worker Adjustment Assistance”—essentially,
an administrative opinion. AR154 et seq. As to the rel-
evant statutory tests, Labor found that AT&T
did not shift the supply of call center, billing, or
network operations services or like or directly
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 9 of 32

Court No. 20-00075 	Page 10
competitive services to a foreign country or ac-
quire call center, billing, or network operations
services or like or directly competitive services
from a foreign country. AT&T officials have con-
firmed the work remained in the United States.
AR160. Accordingly, the certifying officer concluded
that “the requirements of Section 222 of the Act,
19 U.S.C. § 2272, have not been met and, therefore,
den[ied] the petition for group eligibility . . . .” AR160–
61.
D. The union’s request for reconsideration
After Labor issued its negative determination, the
union submitted a one-page letter “requesting an ap-
peal to the determination made to deny the original
petition,” AR173, which Labor construed as an appli-
cation for reconsideration under 29 C.F.R. § 90.18. The
letter gave two reasons for the request: (1) “The major-
ity of the workers at that location were separated from
the company” and (2) “The work that was being done
has shifted to offshore locations as documented in the
evidence presented with the original petition.” AR174.
The letter contained no attachments with new evi-
dence.
Labor—through a new certifying officer not previ-
ously involved in the matter—granted the reconsider-
ation request with boilerplate language stating that
“[t]he request for reconsideration includes new infor-
mation and allegations regarding a shift in services to
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 10 of 32

Court No. 20-00075 	Page 11
a foreign country”5 such that “the claim is of sufficient
weight to justify reconsideration of the U.S. Depart-
ment of Labor’s prior decision.” AR177–78.
E. Labor’s 	reconsideration 	investigation
and report
After granting reconsideration, a new investigator
at 	Labor 	and 	AT&T’s 	in-house 	counsel 	exchanged
e-mails probing deeper into the issues raised by the
union’s petition. Following these exchanges, Labor is-
sued an unsigned “Reconsideration Investigative Re-
port”—presumably authored by the new investiga-
tor—affirming 	the 	initial 	negative 	determination’s
conclusion that there was “no shift in services/no com-
pany or customer imports.” AR362–63 (cleaned up).
The reconsideration report found that AT&T “con-
firmed” that the Kalamazoo, Appleton, and Indianap-
olis locations “did not shift services like or directly
competitive with the services supplied by the workers
of the subject firm to foreign country [sic] or contract
to have services like or directly competitive with those
supplied by the workers of the subject firm in a foreign
country.” AR373–74.
5 The record contained no basis for this statement given
that the union’s reconsideration letter referred to “the evi-
dence presented with the original petition” rather than any
new information. AR174. At oral argument, the govern-
ment’s counsel explained that Labor routinely grants re-
consideration 	notwithstanding 	the 	Department’s 	nomi-
nally stringent standard governing such requests. See
above note 2.
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 11 of 32

Court No. 20-00075 	Page 12
As to the other two locations (Syracuse and Meri-
den), 	Labor 	repeated 	the 	same 	findings 	set 	forth
above—AT&T confirmed the company did not shift
services abroad or contract to have services supplied
abroad, AR378—and quoted AT&T’s assertion that the
union focused on the call centers’ closures rather than
the reasons for such closures. AR379.
F. Labor’s decision on reconsideration
Following the reconsideration investigative report,
Labor—through 	the 	same 	certifying 	officer 	who
granted reconsideration—issued a “Notice of Negative
Determination on Reconsideration.” This document
echoed the prior boilerplate finding that the union’s
“request for reconsideration included new information
and allegations regarding a shift in services to a for-
eign country.” AR385. The document’s substantive dis-
cussion was also boilerplate:
Information obtained during the reconsideration
investigation confirmed that the workers’ firm
neither shifted the supply of call center support
services, billing support services, or network op-
erations center support services (or like or di-
rectly competitive services) to a foreign country
nor contracted to have such services supplied by
a foreign country.
After careful review of previously-submitted in-
formation and additional information obtained
during 	the 	reconsideration 	investigation, 	the
Department determines that 29 CFR 90.18(c)
[governing reconsideration] has not been met.
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 12 of 32

Court No. 20-00075 	Page 13
AR386. The determination then concluded that the re-
quirements of 19 U.S.C. § 2272 had not been met;
therefore, the original determination, which found the
union’s members ineligible to apply for trade adjust-
ment assistance, was affirmed. AR386.
G. This litigation
After Labor issued its negative reconsideration de-
termination, Communications Workers of America Lo-
cal 4123 sent a letter to the clerk “to request a judicial
appeal to [Labor’s] negative determination” of the un-
ion’s petition. ECF 1, at 1. The clerk deemed this pro
se letter as the union’s complaint and summons. See
ECF 4.
The union—now represented by counsel6 —moves
for judgment on the agency record and asks the Court
“to hold that neither substantial evidence nor the law
supports Labor’s negative determinations” and “to va-
cate Labor’s negative determinations and remand this
matter to Labor so that the agency may take further
evidence pursuant to 19 U.S.C. § 2395(b) and issue a
determination consistent with the Court’s order and
6 At the invitation of the clerk, attorneys at the law firm of
Akin Gump Strauss Hauer & Feld entered their pro bono
appearances as counsel for the union. See ECF 10, 11, 19.
Counsel for the union have ably discharged their assign-
ment. Cf. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.
519, 543 n.2 (2012).
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 13 of 32

Court No. 20-00075 	Page 14
opinion in this matter.” ECF 23, at 1–2;7 see USCIT
R. 56.1. The government opposes. ECF 24.
Jurisdiction and Standard of Review
The 	union 	brings 	this 	action 	under 	19 	U.S.C.
§ 2395(a). In addition to conferring a cause of action,
§ 2395(a) in effect codifies the associational standing
of unions to represent their members aggrieved by La-
bor’s denial of benefits. 8 See Int’l Union, United Auto.,
Aerospace 	& 	Agric. 	Implement 	Workers 	of 	Am. 	v.
Brock, 477 U.S. 274, 281–82 (1986) (explaining associ-
ational standing of organization to represent its mem-
bers).
The Court has jurisdiction over § 2395(a) claims
pursuant to 28 U.S.C. § 1581(d)(1), which grants this
Court exclusive jurisdiction over any civil action com-
menced to review “any final determination of the Sec-
retary of Labor under section 223 of the Trade Act of
1974 with respect to the eligibility of workers for
7 In this opinion, citations to the parties’ briefing use the
CM/ECF docket entry (ECF 23 for the union’s opening
brief, ECF 24 for the government’s brief, and ECF 25 for
the union’s reply).
8 Here, the administrative record includes evidence—not
merely allegations—establishing that the union’s members
were employed at the five relevant call centers and thus
were injured by Labor’s denial of eligibility. See AR3–4; cf.
Sierra Club v. EPA, 292 F.3d 895, 899–900 (D.C. Cir. 2002)
(“In many if not most cases the petitioner’s standing to seek
review of administrative action is self-evident; no evidence
outside the administrative record is necessary for the court
to be sure of it.”).
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 14 of 32

Court No. 20-00075 	Page 15
adjustment 	assistance 	under 	such 	Act.” 	See 	also
19 U.S.C. § 2395(c) (same).
The standard of review for factual issues is pre-
scribed by 19 U.S.C. § 2395(b), which provides that
“[t]he findings of fact by the Secretary of Labor, . . . if
supported by substantial evidence, shall be conclusive;
but the court, for good cause shown, may remand the
case to such Secretary to take further evidence, and
such Secretary may thereupon make new or modified
findings of fact and may modify his previous action,
and shall certify to the court the record of the further
proceedings.”
“Substantial evidence is more than a scintilla, and
must do more than create a suspicion of the existence
of the fact to be established. A reviewing court must
consider the record as a whole, including that which
fairly detracts from its weight, to determine whether
there exists such relevant evidence as a reasonable
mind might accept as adequate to support a conclu-
sion.” Nippon Steel Corp. v. United States, 458 F.3d
1345, 1351 (Fed. Cir. 2006) (cleaned up).
Beyond the substantial evidence standard of review
applicable to factual issues, Labor’s decision is also
subject to the default standard of the Administrative
Procedure Act, which allows a reviewing court to set
aside agency action that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A); see Former Emps. of
Motorola Ceramic Prods. v. United States, 336 F.3d
1360, 1362 (Fed. Cir. 2003) (stating, in trade adjust-
ment case, that “[t]he Court of International Trade
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 15 of 32

Court No. 20-00075 	Page 16
also has the authority under the Administrative Pro-
cedure Act to set aside the decision as contrary to law
or arbitrary and capricious”);9 see also United States
Capitol Police v. Off. of Compliance, 908 F.3d 748, 756
(Fed. Cir. 2018) (“A reviewing court must apply the
APA’s . . . review standards in the absence of an excep-
tion.”) (cleaned up and quoting Dickinson v. Zurko, 527
U.S. 150, 154 (1999)).
Discussion
This case presents two issues. First, is Labor’s neg-
ative determination10 on its own terms supported by
substantial evidence and otherwise consistent with
9 At oral argument, the government disputed the APA’s ap-
plicability to this case. This argument is foreclosed by
Motorola.
10 The parties’ briefing did not address what happens if the
Court concludes that only one of the two determinations
before it—the initial negative determination or the later
reconsideration determination—passes muster. At argu-
ment, the union took the position that a remand is required
if either decision is not supported by substantial evidence
or is contrary to law; the government argued that so long
as one of the determinations is supported by substantial
evidence and is otherwise consistent with law, the Court
can sustain Labor. The Court agrees with the government;
in this situation, Labor’s two determinations amount to al-
ternative grounds, and the Court can sustain either one as
the Department’s decision. Cf. Packers Plus Energy Servs.
Inc. 	v. 	Baker 	Hughes 	Oilfield 	Operations, 	LLC, 	773
F. App’x 1083, 1088 (Fed. Cir. 2019) (court can sustain ad-
ministrative decision on alternative grounds where the
parties had the opportunity to address each ground and the
agency considered each of the facts underlying the alterna-
tive grounds).
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 16 of 32

Court No. 20-00075 	Page 17
law? Second, did Labor act arbitrarily by treating the
union’s petition in this case differently than it treated
allegedly similarly situated petitioners in other cases
involving other AT&T call centers? The Court ad-
dresses each issue in turn.
I.
As the union’s reply brief explains, the critical ques-
tion here—in view that there is no dispute that the un-
ion’s members were separated from their call center
jobs, see 19 U.S.C. § 2272(a)(1)—is whether Labor
properly 	concluded 	for 	purposes 	of 	19 	U.S.C.
§ 2272(a)(2)(B)(i) that AT&T “had not (1) shifted the
supply of call center support services, billing support
services, or network operations center support services
to a foreign country, or (2) contracted to have such ser-
vices supplied by a foreign country.” ECF 25, at 2.
A.
As noted above, the analysis in Labor’s initial neg-
ative determination consisted of two sentences:
[T]he investigation revealed that the firm did
not shift the supply of call center, billing, or net-
work operations services or like or directly com-
petitive services to a foreign country or acquire
call center, billing, or network operations ser-
vices or like or directly competitive services from
a foreign country. AT&T officials have confirmed
the work remained in the United States.
AR160 (emphasis added).
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 17 of 32

Court No. 20-00075 	Page 18
1.
The union’s first two lines of attack are that Labor
failed to “identify the particular record evidence on
which it relied for its finding or explain why it reached
the conclusion that it did in view of the record as a
whole.” ECF 23, at 13. Relatedly, the union asserts
that Labor did not discuss the record evidence “that
cuts against its finding and how, nevertheless, the
substantiality of the record points to its proffered find-
ing.” Id.
As to the first point, although it is true that the
Court “will uphold a decision of less than ideal clarity
if the agency’s path may reasonably be discerned,”
Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc.,
419 U.S. 281, 286 (1974), the problem here is that the
certifying officer did not identify AT&T’s evidence that
she found persuasive—as noted above, she merely
stated that “AT&T officials have confirmed the work
remained in the United States.” AR160. While the
Court can reasonably discern that she found AT&T’s
evidence convincing, that fact alone is not enough be-
cause portions of AT&T’s evidence (its questionnaire
responses) 	were 	certified 	pursuant 	to 	19 	U.S.C.
§ 2272(d)(3)(A)(i) while other portions (the e-mail ex-
changes between AT&T’s in-house counsel and Labor’s
investigator) were not. The Court explains the signifi-
cance of that distinction in Part I.A.3., below, but the
upshot 	is 	that 	the 	Court 	is 	unable 	to 	determine
whether, or to what extent, the certifying officer relied
upon AT&T’s noncertified evidence. The Court must
remand 	so 	that 	Labor 	can 	do 	so 	unless 	the
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 18 of 32

Court No. 20-00075 	Page 19
Department’s 	reconsideration 	determination 	inde-
pendently supports its denial of benefits.
The union’s second line of attack also lands on tar-
get. Labor’s negative determination simply did not
acknowledge, much less discuss, the union’s evidence,
which as discussed above consisted of a job report and
certain anecdotal examples of offshoring of work. See
AR17–25 	(job 	report), 	AR129–30 	(anecdotal 	evi-
dence).11 Nor did that determination explain—directly
or indirectly—why the certifying officer chose AT&T’s
explanation over the union’s evidence. “[T]he agency
must examine the relevant data and articulate a sat-
isfactory explanation for its action including a rational
connection between the facts found and the choice
made.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983) (cleaned up) (cit-
ing Burlington Truck Lines, Inc. v. United States, 371
U.S. 156, 168 (1962)). That means it’s the agency’s job
to weigh the evidence—not to ignore the evidence on
one side of the scale and leave it to the court to surmise
why the agency made the decision it did.
11 The government argues that the investigative report’s
reference to the job report obviates the absence of any such
reference in the initial negative determination. ECF 24, at
16–17. The problem with this argument is twofold. First,
insofar as the investigator addressed the job report, the
Court is unable to reasonably discern the certifying officer’s
view of it—the negative determination does not even make
an oblique reference to the job report. Second, the investi-
gative report itself did not address the job report, except in
a passing reference that simply quoted the petition’s refer-
ence to it. See AR145.
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 19 of 32

Court No. 20-00075 	Page 20
The government offers two responses. First, as to
the job report, it argues that no such discussion was
necessary because nothing in the report “mentions any
connection between the work of the foreign call centers
and any of the five AT&T call centers in question. It is
not readily obvious why or how the information in the
job 	report 	could 	reasonably 	be 	interpreted 	to 	‘cut
against’ Labor’s determination.” ECF 24, at 16.
Although the government is certainly correct that
the job report does not directly contradict the certify-
ing officer’s conclusion—as the union’s counsel con-
ceded at argument, the job report contains no “smok-
ing gun”—“the substantiality of evidence must take
into account whatever in the record fairly detracts
from its weight, including contradictory evidence or ev-
idence 	from 	which 	conflicting 	inferences 	could 	be
drawn.” Mittal Steel Point Lisas Ltd. v. United States,
548 F.3d 1375, 1380–81 (Fed. Cir. 2008) (cleaned up
and emphasis added). Here, a fair reading of the job
report permits the drawing of inferences that conflict
with the certifying officer’s conclusion.
Specifically, the report stated that AT&T has closed
multiple call centers and laid off several thousand
workers while shifting work to lower-wage contract
workers, many of them located abroad. AR20. The re-
port mentioned the Indianapolis, Kalamazoo, and Ap-
pleton call centers as locations facing imminent clo-
sure, and asserted that “the company can decide where
to route calls and continues to contract with global
third-party call centers to handle collections cases.”
AR21. The report quoted a longtime employee in Ap-
pleton who contended that AT&T was moving jobs to
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 20 of 32

Court No. 20-00075 	Page 21
offshore locations with lower-wage workers. AR21–22.
The union further contended that AT&T opened a call
center in Mexico and planned to expand it by moving
jobs away from U.S.-based locations. AR22. All of this,
fairly read, at least allows for an inference that the clo-
sures of the call centers in question will result in the
offshoring of job functions previously performed in
those facilities. 12
Although an agency adjudicator, such as the certi-
fying officer at Labor, need not address every piece of
evidence in the record, see, e.g., Novartis AG v. Torrent
Pharms. Ltd., 853 F.3d 1316, 1328 (Fed. Cir. 2017) (ex-
plaining that it was not necessary for agency to “ex-
pressly discuss each and every negative and positive
piece of evidence lurking in the record . . . ,” and noting
that agency’s citation of relevant record pages estab-
lished that it had considered them even though it did
not discuss them in its written decision), the failure to
do so risks a remand if such evidence is susceptible of
a fair inference that detracts from the agency’s conclu-
sion. Because the certifying officer failed to discuss or
even indirectly reference the union’s evidence from
which reasonable conflicting inferences can be drawn,
the Court must remand unless Labor’s reconsideration
12 The government does not respond to the union’s argu-
ment that Labor’s certifying officer also overlooked the un-
ion’s anecdotal evidence. In any event, that evidence is also
susceptible of the fair inference that the jobs in question
were offshored. See AR129–30 (“We have two examples be-
low of calls made regarding products our Reps do support
for that have been routed to overseas vendors.”).
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 21 of 32

Court No. 20-00075 	Page 22
determination 	independently 	supports 	the 	Depart-
ment’s denial of benefits.
2.
The union’s third line of attack on the initial nega-
tive determination is that Labor’s investigator did not
take “additional investigative steps” that the union
contends were required under Former Employees of
Marathon Ashland Pipe Line LLC v. Chao, 370 F.3d
1375 (Fed. Cir. 2004), due to the presence of conflicting
evidence. See ECF 23, at 16–17. In that decision, which
apparently 	involved 	noncertified 	employer 	state-
ments, the Federal Circuit stated that Labor could rely
on such representations “if the Secretary reasonably
concludes that those statements are creditworthy and
are not contradicted by other evidence.” Marathon,
370 	F.3d 	at 	1385 	(citing 	Former 	Emps. 	of 	Barry
Callebaut v. Chao, 357 F.3d 1377, 1383 (Fed. Cir.
2004)).13 A “conflict over the underlying facts in the ev-
idence” would require that the “Secretary take further
investigative steps before making her certification de-
cision.” Id.
13 The Federal Circuit’s statement that Labor could rely on
noncertified employer representations “if the Secretary
reasonably concludes that those statements are creditwor-
thy” 	appears 	to 	be 	an 	allusion 	to 	19 	U.S.C.
§ 	2272(d)(3)(A)(ii), 	which 	requires 	that 	“the 	Secretary
ha[ve] a reasonable basis for determining that such infor-
mation is accurate and complete without being certified.”
Id.
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 22 of 32

Court No. 20-00075 	Page 23
Even if it represents a correct statement of the
law,14 Marathon does not apply here. To begin with,
AT&T’s questionnaire responses were certified under
penalty of law and were thus presumptively creditwor-
thy under the statute. See 19 U.S.C. § 2272(d)(3)(A)(i).
Moreover, Labor did undertake additional investiga-
tive steps here. The initial investigative report reveals
that Labor’s investigator had several exchanges with
AT&T’s in-house counsel after receiving the company’s
questionnaire responses. See AR113–28; AR135–40.
Then, Labor granted reconsideration, and a new inves-
tigator had several more exchanges with AT&T’s in-
14 The Court doubts the correctness of Marathon’s sugges-
tion that Labor may not rely on noncertified but reasonably
creditworthy representations of company officials when
such representations are contradicted by other evidence.
That proposition—which is dicta—is untethered to the
statute, which charges the Department—not the courts—
with “establish[ing] standards . . . for investigations of pe-
titions 	. 	. 	. 	and 	criteria 	for 	making 	determinations.”
19 	U.S.C. 	§ 	2273(e)(1). 	Nor 	is 	it 	tethered 	to 	Barry
Callebaut, which Marathon cites.
In the Court’s view, the only question for the courts in
trade adjustment assistance cases is whether Labor’s de-
terminations are supported by substantial evidence and
otherwise consistent with the APA. Under those standards,
Labor can rely on noncertified representations from an em-
ployer—if, as explained below, it finds them reasonably
creditworthy and explains its reasons for doing so—so long
as it addresses the conflicting evidence (or evidence giving
rise to conflicting inferences) and adequately explains its
reasons for choosing the employer’s noncertified but rea-
sonably creditworthy evidence over conflicting evidence or
inferences.
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 23 of 32

Court No. 20-00075 	Page 24
house counsel. See AR188–220; AR222–61; AR295–
312; AR325–61.
Insofar as Marathon requires additional investiga-
tive steps, Labor took them here. The problem with
Labor’s initial negative determination is not with the
Department’s investigation, but rather with the certi-
fying officer’s failure to sufficiently explicate her rea-
sons based on the results of that investigation.
3.
Finally, the union challenges the investigator’s—
and by extension, the certifying officer’s—reliance on
“uncorroborated 	statements 	from 	AT&T 	officials
whose 	accuracy 	Labor 	never 	confirmed.” 	ECF 	23,
at 17. Specifically, the union complains—citing For-
mer Employees of Tyco Toys, Inc. v. Brock, 12 CIT 781
(1988), and Former Employees of BMC Software, Inc.
v. U.S. Secretary of Labor, 454 F. Supp. 2d 1306 (CIT
2007)—that “Labor failed to establish that the officials
certifying each response had personal knowledge over
what transpired at each location” and “likewise failed
to identify other record evidence that corroborated
what the officials certified.” ECF 23, at 17–18.
As discussed above, the statutory provision govern-
ing 	Labor’s 	obligation 	to 	verify 	information 	is
19 U.S.C. § 2272(d)(3)(A). It imposes two require-
ments. Labor must mandate certification of all ques-
tionnaire responses. See 19 U.S.C. § 2272(d)(3)(A)(i).
As to other information “obtained . . . from the firm” on
which Labor “relies,” the Department must require
certification unless Labor “has a reasonable basis for
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 24 of 32

Court No. 20-00075 	Page 25
determining that such information is accurate and
complete 	without 	being 	certified.” 	See 	id.
§ 2272(d)(3)(A)(ii). Significantly, the statute imposes
no personal knowledge requirement on company offi-
cials responding to Labor’s inquiries. Insofar as Tyco
Toys and BMC Software impose an extratextual per-
sonal knowledge requirement, the Court disagrees
with and declines to follow them.
In the Court’s view, § 2272(d)(3)(A) is functionally
analogous to Federal Rule of Civil Procedure 30(b)(6),
which likewise imposes no personal knowledge re-
quirement on representatives designated to testify on
behalf of a corporation.15 As Judge Sutton explains:
The personal knowledge requirement works dif-
ferently in this [Rule 30(b)(6)] setting, where a
human being (Moreno) speaks for a corporation
(Midland). . . . It is not easy to take a deposition
15 Rule 30(b)(6) provides in relevant part:
Notice or Subpoena Directed to an Organization. In its
notice or subpoena, a party may name as the deponent
a public or private corporation, an association, a gov-
ernmental agency, or other entity and must describe
with reasonable particularity the matters for examina-
tion. The named organization must designate one or
more officers, directors, or managing agents, or desig-
nate other persons who consent to testify on its behalf;
and it may set out the matters on which each person
designated will testify. . . . The persons designated must
testify about information known or reasonably availa-
ble to the organization. . . .
Fed. R. Civ. P. 30(b)(6) (emphasis added); see also USCIT
R. 30(b)(6) (same).
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 25 of 32

Court No. 20-00075 	Page 26
of a corporation or for that matter obtain an af-
fidavit from one. In one sense, indeed, it is not
even possible to do so, as inanimate objects are
not known for their facility with language. That
means, whenever a corporation is involved in lit-
igation, “the information sought must be ob-
tained from natural persons who can speak for
the corporation.” 8A Charles Alan Wright et al.,
Federal Practice and Procedure § 2103 (3d ed.
2015). And that means “[t]here is no obligation
to select a person with personal knowledge of the
events in question,” so long as the corporation
“proffer[s] a person who can answer regarding
information known or reasonably available to
the organization.” Id. (emphasis added) (quota-
tion omitted).
Lloyd v. Midland Funding, LLC, 639 F. App’x 301, 305
(6th Cir. 2016) (emphasis in original). As in the Rule
30(b)(6) context, a company representative responding
to Labor in a trade adjustment assistance investiga-
tion need not have personal knowledge. It’s up to Con-
gress, not the federal judiciary, to impose any such re-
quirement.
Nevertheless, insofar as Labor chooses to rely on
noncertified information from a company representa-
tive, the statute requires that the Department have “a
reasonable 	basis 	for 	determining 	that 	such 	infor-
mation is accurate and complete without being certi-
fied.” 19 U.S.C. § 2272(d)(3)(A)(ii). The Court inter-
prets this as requiring Labor—when it relies upon
noncertified information—to expressly find that it has
a reasonable basis for determining the accuracy and
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 26 of 32

Court No. 20-00075 	Page 27
completeness of such information and to explain the
basis for that finding.
During 	its 	initial 	investigation, 	Labor 	received
AT&T’s certified questionnaire responses as well as
noncertified information from AT&T’s in-house coun-
sel. As discussed above in Part I.A.1., the certifying of-
ficer’s 	decision 	did 	not 	address 	what 	portion(s) 	of
AT&T’s evidence she found convincing. The Court is
therefore unable to determine whether she relied on
the certified questionnaire responses, the noncertified
e-mail correspondence with AT&T’s in-house counsel,
or some combination of both. Nor, to the extent she
may have relied on the noncertified information, did
her decision address whether she had a reasonable ba-
sis for determining that the information was accurate
and complete without being certified. The Court must
therefore remand so that Labor can address these
questions unless Labor’s reconsideration determina-
tion independently supports Labor’s denial of the un-
ion’s petition.
B.
As discussed above, all information Labor obtained
from AT&T in its reconsideration investigation was
noncertified. After that investigation, Labor’s negative
reconsideration determination consisted of the follow-
ing two sentences:
Information obtained during the reconsideration
investigation confirmed that the workers’ firm
neither shifted the supply of call center support
services, billing support services, or network
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 27 of 32

Court No. 20-00075 	Page 28
operations center support services (or like or di-
rectly competitive services) to a foreign country
nor contracted to have such services supplied by
a foreign country.
After careful review of previously-submitted in-
formation and additional information obtained
during 	the 	reconsideration 	investigation, 	the
Department determines that 29 CFR 90.18(c)
has not been met.
AR386.
Labor’s 	reconsideration 	determination 	suffered
from the same defects as its initial determination. It
failed to identify AT&T’s evidence upon which it re-
lied. It also failed to grapple with the union’s evidence
from 	which 	conflicting 	inferences 	might 	be 	fairly
drawn. And insofar as the reconsideration determina-
tion relied on noncertified information obtained from
AT&T, Labor made no finding that it could reasonably
rely on such information. The Court therefore cannot
sustain the reconsideration determination.
II.
The union also argues that because Labor recently
granted trade adjustment assistance certification to
former AT&T employees in Brecksville, Ohio, see No-
tice of Determinations Regarding Eligibility to Apply
for Trade Adjustment Assistance, 84 Fed. Reg. 57,762,
57,765 (Dep’t Labor Oct. 28, 2019), and Harrisburg,
Pennsylvania, see Notice of Determinations Regarding
Eligibility to Apply for Trade Adjustment Assistance,
83 Fed. Reg. 53,297, 53,300 (Dep’t Labor Oct. 22,
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 28 of 32

Court No. 20-00075 	Page 29
2018), Labor was obligated to explain why it reached a
different result here.16 Plaintiffs contend that failure
to do so is “unreasoned and unexplained decision-mak-
ing that results in the disparate treatment of similarly
situated parties [and] is arbitrary and therefore un-
lawful.” ECF 23, at 25.
Neither Federal Register publication is even re-
motely informative as to the basis for Labor’s decisions
in the prior cases. Both notices referred to the affected
former AT&T employees in a table of employee groups
collected 	under 	the 	umbrella 	category 	of 	cases 	in
which 	“[t]he 	requirements 	of 	Section 	222(a)(2)(B)
(Shift in Production or Services to a Foreign Country
Path or Acquisition of Articles or Services from a For-
eign Country Path) of the Trade Act [i.e., 19 U.S.C.
§ 	2272(a)(2)(B)] 	have 	been 	met.” 	83 	Fed. 	Reg.
at 53,299–300; 84 Fed. Reg. at 57,764–65. Because La-
bor does not publish its final decisions or its investiga-
tive reports in the Federal Register, that bare-bones
language is the extent of the material in the record be-
fore this Court regarding the Harrisburg and Brecks-
ville decisions. Therefore, as an initial matter the gov-
ernment is correct in arguing that there is no evidence
in the record before the Court demonstrating that
Plaintiffs “are similarly situated with workers from
16 There is no indication in the record that the union argued
to Labor that its members in the five call centers were sim-
ilarly situated to its members in the Harrisburg call center,
even though Labor’s affirmative eligibility decision in that
case antedated the union’s petition here by just over four
months. (Labor issued its affirmative eligibility determina-
tion regarding the Brecksville facility after the Department
granted reconsideration of the union’s petition here.)
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 29 of 32

Court No. 20-00075 	Page 30
different call centers who submitted a different peti-
tion.” ECF 24, at 24.17 That alone is reason to sustain
the agency’s determination against the union’s “simi-
larly situated” challenge.
Nevertheless, the implication of the union’s argu-
ment is that Labor had an affirmative duty to compare
the union’s petition here with the facts and circum-
stances of the eligibility determinations in Brecksville
and Harrisburg, notwithstanding that the union’s pe-
tition made no claim that its members here were sim-
ilarly situated to the AT&T employees in Brecksville
and Harrisburg and the record lacked any such evi-
dence. But why stop there? If Labor had such an obli-
gation notwithstanding the lack of any evidence, then
17 In its reply, the union argues that its members employed
by AT&T at the Kalamazoo, Appleton, and Indianapolis
call centers “worked in the very same ‘Digital, Retail &
Care’ division as those former AT&T employees certified”
as eligible for trade adjustment benefits in Labor’s Harris-
burg determination. ECF 25, at 17–18. The first problem
with this is that the Harrisburg workers were employed by
the Digital, Retail & Care division of “AT&T Mobility Ser-
vices,” see 83 Fed. Reg. at 53,300, whereas the Kalamazoo,
Appleton, and Indianapolis call center union workers were
employed by the Digital, Retail & Care division of “AT&T
Teleholdings, Inc.” See AR 144–45. Moreover, even if the
union members were in fact working for the same entity
and performing identical jobs—facts that are not estab-
lished on this record—that would still not necessarily es-
tablish that the employees in Kalamazoo, Appleton, and In-
dianapolis were similarly situated to the workers in Har-
risburg. It might merely mean that the services in Harris-
burg were offshored, while the services in Kalamazoo, Ap-
pleton, and Indianapolis were not.
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 30 of 32

Court No. 20-00075 	Page 31
presumably it was also obligated to compare the un-
ion’s petition here with the facts and circumstances of
every 	other 	Labor 	eligibility 	determination 	as 	to
AT&T employees in recent years (or perhaps recent
decades?). The absence of any discernable limiting
principle to the union’s argument demonstrates that it
cannot be right.
The question before Labor was whether AT&T off-
shored the services at the call centers identified in the
union’s petition. Labor was required to make that de-
termination based on the evidence in the record in this
matter, 	not 	on 	whether 	Labor 	had 	certified 	other
groups of AT&T workers at different locations as to
whom there was no evidence in the record. On this rec-
ord, Labor had no affirmative obligation to compare
the union’s petition here with previous trade assis-
tance determinations involving other AT&T call cen-
ters. Cf. ABB Inc. v. United States, 437 F. Supp. 3d
1289, 1301 (CIT 2020) (explaining that different pro-
ceedings representing different exercises of agency au-
thority allow for “different conclusions based on differ-
ent facts in the record”).
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 31 of 32

Court No. 20-00075 	Page 32
Conclusion
For the reasons provided above, the Court will re-
mand this matter to Labor for further proceedings con-
sistent with this opinion.18 A separate remand order
will issue.
Dated: 	May 4, 2021 	/s/ M. Miller Baker
New York, NY 	M. Miller Baker, Judge
18 On remand, insofar as Labor agrees with the union on
the points remanded, Labor must then address whether
the offshoring of work “contributed importantly” to the sep-
aration 	of 	the 	union’s 	members 	here. 	See 	19 	U.S.C.
§ 2272(a)(2)(B)(ii).
Case 1:20-cv-00075-MMB Document 30 Filed 05/04/21 Page 32 of 32