Former Employees of Computer Sciences Corp. v. United States Secretary of Labor

Slip Op. 06-62

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
________________________________________
:
FORMER EMPLOYEES OF COMPUTER :
SCIENCES CORPORATION, :
:
Plaintiffs, :
: Court No. 04-00149
v. :
:
UNITED STATES SECRETARY OF LABOR, :
:
Defendant. :
________________________________________:

JUDGMENT

On September 22, 2003, a petition for trade adjustment
assistance (“TAA”) was filed on behalf of the Former Employees of
Computer Sciences Corporation (“Plaintiffs”). On October 24, 2003,
the United States Department of Labor (“Labor”) denied Plaintiffs’
petition. See Negative Determination Regarding Eligibility To
Apply for Worker Adjustment Assistance, TA-W-53,209 (Dep’t Labor
Oct. 24, 2003) published at 68 Fed. Reg. 66,878 (Dep’t Labor Nov.
28, 2003). Labor determined that Plaintiffs did not produce an
article within the meaning of Section 222 of the Trade Act of
1974,as amended 19 U.S.C. § 2272 (West Supp. 2004) (the “ Trade
Act”). Plaintiffs challenged Labor’s determination on November
24, 2003. Labor again denied Plaintiffs’ request for
certification. See Notice of Negative Determination on
Reconsideration for Computer Sciences Corporation, Financial
Services Group (“FSG”), East Hartford, Connecticut,(Dep’t Labor
Feb. 3, 2004) published at 69 Fed. Reg. 8,488 (Dep’t Labor Feb. 24,
2004). Labor found that although the Plaintiffs produced software,
they were nonetheless ineligible to apply for TAA benefits since
Computer Sciences Corporation (“CSC”) neither shifted software
production abroad nor imported software directly competitive with
that produced at the subject facility.

On March 15, 2004, Plaintiffs sought judicial review and filed
a letter with the Court which the Clerk of the Court deemed as the
filing of a summons and complaint. On May 28, 2004, Labor filed a
consent motion for voluntary remand indicating that it would
further investigate conflicting information in the record. The
Court No. 04-00149 Page 2

Court granted this motion on June 2, 2004. Labor again denied
Plaintiffs’ eligibility for TAA benefits in its Notice of Negative
Determination on Reconsideration on Remand for Computer Sciences
Corporation, Financial Services Group, East Hartford,
Connecticut,(Dep’t Labor July 29, 2004) published at 69 Fed. Reg.
48,526 (Dep’t Labor Aug. 10, 2004). On remand, Labor determined
that all storing and copying functions remained in the United
States, packing functions did not shift to India and CSC did not
import software directly competitive with that produced at the
subject facility. On April 14, 2005, the Court remanded the matter
to Labor with instructions to investigate whether Plaintiffs
produced code and if they did, whether the production of code
shifted to India. On its second remand, Labor again determined
that Plaintiffs were not eligible for TAA certification because
Plaintiffs do not produce an article under the Trade Act. See
Notice of Negative Determination on Remand for Computer Sciences
Corporation, Financial Services Group, East Hartford,
Connecticut,(Dep’t Labor Aug. 24, 2005) published at 70 Fed. Reg.
52,129, 52,130 (Dep’t Labor Sept. 1, 2005). On January 27, 2006,
the Court again remanded while instructing Labor to adequately
explain its conclusion as to why software code is not an article
under the Trade Act. On March 24, 2006, Labor filed its Notice of
Revised Determination on Remand (“Remand Determination”), TA-W-
53,209 (Dep’t Labor March 2006) published at 71 Fed. Reg. 18355
(Dep’t Labor Apr. 11, 2006).

In its Remand Determination, Labor determined that Plaintiffs
produced an intangible article (financial software) that would have
been considered an article if it was embodied in a physical medium.
As such, “[s]oftware 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 articles
regardless of their method of transfer.” Remand Determination, 71
Fed. Reg. at 18355. Labor further determined that as a result of
CSC shifting production of software abroad and an increase in
imports of software like or directly competitive with that produced
at the subject facility, employment at the subject facility
declined. Labor therefore certified Plaintiffs as being eligible
for TAA benefits.

Upon consideration of Labor’s Remand Determination,
Plaintiff’s Comments, and other papers and proceedings filed
herein; it is hereby
Court No. 04-00149 Page 3

ORDERED that Labor’s decision to certify Plaintiffs as
eligible to receive TAA benefits is supported by substantial
evidence and is otherwise in accordance with law; and it is further

ORDERED that Labor’s Remand Determination filed on March 24,
2006, is affirmed; and it is further

ORDERED that this case is dismissed.

/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE

Dated: May 1, 2006
New York, New York