Former Employees of Ibm v. U.S. Secretary of Labor, Slip Op. 06-93.

• Decision Date: 21 June 2006
• Docket Number: Slip Op. 06-93.,Court No. 03-00656.
• Citation: 435 F.Supp.2d 1335
• Parties: FORMER EMPLOYEES OF IBM CORPORATION, Global Services Division, Plaintiffs, v. UNITED STATES SECRETARY OF LABOR, Defendants.
• Court: U.S. Court of International Trade

Page 1335

435 F.Supp.2d 1335

FORMER EMPLOYEES OF IBM CORPORATION, Global Services Division, Plaintiffs, v. UNITED STATES SECRETARY OF LABOR, Defendants.

Slip Op. 06-93.

Court No. 03-00656.

United States Court of International Trade.

June 21, 2006.

JUDGMENT

BARZILAY, Judge.

On November 13, 2002, and December 16, 2002, Former Employees of IBM Corporation, Global Services Division ("Plaintiffs"), in Piscataway and Middleton, N.J., respectively filed petitions with the Department of Labor ("Labor" or "Defendant") for trade adjustment assistance ("TAA") benefits. Labor denied Plaintiffs' petition on March 23, 2003, because the facilities where Plaintiffs worked did not produce "an article" within the meaning of 19 U.S.C. § 2272(a) (2000). See Notice of Determinations Regarding Eligibility to Apply for Worker Adjustment Assistance and NAFTA Transitional Adjustment Assistance, 68 Fed.Reg. 16,833-01 (Dep't of Labor Apr. 7, 2003). In the subsequent administrative redetermination initiated by Plaintiffs, Labor affirmed its decision. See IBM Corporation, Global Services Division, Piscataway, N.J., and IBM Corporation, Global Services Division, Middletown, N.J.; Notice of Negative Determination Regarding Application for Reconsideration, 68 Fed.Reg. 41,845-02 (Dep't of Labor July 15, 2003) ("Reconsideration Determination"). Defendant concluded that "software and associated information technology services are not listed in the HTSUS" and that the products Plaintiffs produced "are not the type of employment work products that Customs officials inspect and that the TAA program was generally designed to address," as software and information system development and testing constituted services rather than production of an article. Id. at 41,845-46. Plaintiffs then brought their case before this Court.

On August 1, 2005, the court found Labor's Reconsideration Determination "not supported by substantial evidence" and remanded it for further review. Former Employees of IBM Corp., Global Serv Div. v. U.S. Sec'y of Labor, 29 CIT ___, ___, 387 F.Supp.2d 1346, 1348 (2005). Specifically, the court ordered Labor to supplement its inadequate record "by further investigating the nature of the software produced by Plaintiffs" and to "explain the differences between the activities performed by Plaintiffs in this case and the activities performed by other petitioners involved in developing computer software who received TAA benefits in the past." Id. at 1353. On remand, Labor again denied Plaintiffs certification because Plaintiffs' work product did not constitute "an article" since it did not consist of a "tangible commodity." IBM Corporation, Global Services Division, Piscataway, N.J.; IBM Corporation, Global Services Division, Middletown, N.J.; Notice of Negative Determination on Remand, 70 Fed.Reg. 75,837-02, 75,839 (Dep't of Labor Dec. 21, 2005).

Soon after Plaintiffs filed their remand comments, this court granted Labor a voluntary remand so...