Slip Op. 06-115
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
________________________________________
:
FORMER EMPLOYEES OF GALE GROUP, INC., :
:
Plaintiffs, :
: Court No.
v. : 04-00374
:
UNITED STATES SECRETARY OF LABOR, :
:
Defendant. :
________________________________________:
JUDGMENT
In Former Employees of Gale Group, Inc. v. United States Sec’y
of Labor (“Gale Group”), 29 CIT ___, 403 F. Supp. 2d 1299 (2005),
the Court affirmed the Department of Labor’s (“Labor’s”)
determination denying Former Employees of Gale Group, Inc.’s
(“Plaintiffs’”) eligibility for certification to receive trade
adjustment assistance (“TAA”) benefits. See Gale Group, 29 CIT at
___, 403 F. Supp. 2d at 1304. In affirming Labor’s negative
determination, the Court stated that Labor’s factual determination
that Plaintiffs performed electronic indexing services and
therefore did not produce an article was supported by substantial
record evidence. See id. at ___, 403 F. Supp. 2d at 1303.
Plaintiffs then appealed to the Court of Appeals for the
Federal Circuit (“CAFC”) on January 12, 2006. While on appeal,
Labor revised its policy to “acknowledge that . . . there are
tangible and intangible articles and to clarify that the production
of intangible articles can be distinguished from the provision of
services. Software and similar intangible goods that would have
been considered articles for the purposes of the Trade Act if
embodied in a physical medium will now be considered to be articles
regardless of their method of transfer.” Notice of Revised
Determination on Remand for Computer Sciences Corp., Fin. Services
Group, East Hartford, Connecticut, TA-W-53,209 (Mar. 24, 2006),
published at 71 Fed. Reg. 18,355, 18,355 (Apr. 11, 2006).
Labor then moved, without opposition from Plaintiffs, to
remand this matter to the Court “for the limited purpose of
remanding to [Labor] to make a determination regarding
certification for benefits under the Trade Act in accordance with
Labor’s current policy[,]” which the CAFC granted. Order (CAFC
Court No. 04-00374 Page 2
June 2, 2006). On June 19, 2006, the Court remanded this matter
back to Labor and noted that the Court considered the facts of this
case to be distinguishable from Former Employees of Computer
Sciences Corp. v. United States Sec’y of Labor, 29 CIT ___, 366 F.
Supp. 2d 1365 (2005).
On July 20, 2006, Labor filed its revised determination. See
Notice of Revised Determination on Remand (“Revised
Determination”), TA-W-54,434 (July 19, 2006). In its Revised
Determination, Labor stated that its revised policy acknowledges
“that there are tangible and intangible articles. Products that
would have been considered an article if embodied in a physical
medium will now be considered an article for purposes of the Trade
Act even if transmitted or stored electronically.” Revised
Determination at *2. Upon review and in light of its revised
policy, Labor determined that Plaintiffs produced “an intangible
article (electronic documents) and that, following the shift of
production abroad, documents like or directly competitive with
those produced at the subject firm were brought back into the
United States.” Id. at *3. Therefore, Labor certified Plaintiffs
as eligible to apply for TAA benefits. See id. at *3-4.
Plaintiffs filed comments on July 25, 2006, concurring with the
Revised Determination.
The Court, having received and reviewed Labor’s Revised
Determination and comments of Plaintiffs, holds that Labor duly
complied with the Court’s remand order, and it is hereby
ORDERED that Labor’s Revised Determination is supported by
substantial evidence and otherwise in accordance with law; and it
is further
ORDERED that the Revised Determination filed by Labor on July
20, 2006, is affirmed in its entirety; and it is further
ORDERED that this case is dismissed.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: July 25, 2006
New York, New York