                                         Slip Op. 06-93

               UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
                                     :
FORMER EMPLOYEES OF IBM              :
CORPORATION, GLOBAL SERVICES :
DIVISION,                            :
                                     :
            Plaintiffs,              :  Before: Judith M. Barzilay, Judge
                                     :  Court No. 03-00656
      v.                             :
                                     :
UNITED STATES SECRETARY OF           :
LABOR,                               :
                                     :
            Defendants.              :
____________________________________:

                                         JUDGMENT

       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 that Labor could reconcile its decision with recent changes in its TAA policy. In its

revised remand results, Labor “determined that . . . [Plaintiffs] produce[d] an article (computer

software)” and that “a significant portion of workers” at both New Jersey facilities in question

lost their employment because “production shifted to an affiliated facility located in Canada.”
IBM Corporation, Global Services Division, Piscataway, N.J.; Middletown, N.J.; Notice of

Revised Determination on Remand, 71 Fed. Reg. 29,183-01, 29,183 (Dep’t of Labor May 15,

2006). Consequently, Labor certified Plaintiffs as eligible for trade adjustment assistance. See

id.

       Upon consideration of Labor’s May 15, 2006, remand determination, the court’s prior

opinion in this case, and other papers, it is hereby

       ORDERED that Labor’s decision to certify Plaintiffs1 to receive TAA benefits is

supported by substantial evidence and is otherwise in accordance with law; and it is further

       ORDERED that Labor’s May 15, 2006, Notice of Revised Determination on Remand is

AFFIRMED in its entirety.



       June 21, 2006                                        /s/ Judith M. Barzilay
Dated:_________________________                             _____________________________
       New York, NY                                         Judith M. Barzilay, Judge




       1
        Plaintiffs in this case do not include Barbara L. Pineau, Dick Young, or John F. Lake, as
these parties were earlier dismissed for lack of subject matter jurisdiction because they had not
exhausted their administrative remedies prior to bringing suit in this Court. See Former
Employees of IBM Corp., Global Serv. Div., 387 F. Supp. 2d at 1349.
