Slip Op. 06-53 UNITED STATES COURT OF INTERNATIONAL TRADE

_______________________________________ Former Employ ees of El ectroni c Data : Systems Corp., :

Plaintiff s, : Before: Judge Judith M. Barzilay v. Court No. 03-00373 : United States Secretary

of Labor, : Defend ant.

_______________________________________ :

JUDGMENT In De cember

2002, Plain

tiffs, the Former Employ ees of El ectroni c Data Sy stems Corporation, I Solutions Center, Fairborn, Ohio (“ EDS”), filed their petition for trade adjustment assistance (“TAA”) benefits with Defe ndant, the Department of La bor (“Labor” ). In Februa ry 2003, Labor denied Plaintiffs’ petition for TAA on the grounds that the facility

where Plaintiffs worked prior to their separation did not produce “ar ticles” within the meaning of Section 222 of the Trade Act of 1974, 19 U.S.C. § 2272(a) (2000). Ba sed on EDS’s explanation that it produced computer progra ms, job con

trol lang uage, databas e support

and docu ments and

third par ty support a nd docume

ntation, L abor fou nd that ED S was invol

ved in pro viding se

rvices a nd not in a production of articles. Plaintiffs then sought review by the Court, and this court remanded the case to the Secretary

of Labor for fur

ther investigation. On January 31, 2005, Labor issued the second negative determination reasse rting its position that Plaintiffs did not produce “articles.” After reviewing L abor’s results, this court remanded the case ag ain in November 2005,Court No. 03-00373 Page 2

instructing Labor to furthe r investigate the nature of EDS’s work and dire cting it to provide the court with a reasoned explanation why software not sold to the client on a phy sical medium was not an article within the meaning of Section 222. Upon the s econd re

mand, L abor has

altered its position , “revis [ing] its pol icy to acknowledge that, at least in the context of this case, there are tangible and intangible ar ticles and to clarify that the pr

oduction of intangible articles can be distinguished fr om the provision of services.” Notice of Revised Determination on Remand , EDS , at [3]. Labor’s new policy – that Labo r stated needs ela

boration through rulemak ing – is th at “[s]oftw are and similar int

angible goods th at would h ave bee n conside red art icles for the purpo ses of the

Trade A ct if embo died in a phy sical med

ium will now

be consid

ered to b e articl es regardless of their method of transfer .” Notice of Revised Determination on Remand , EDS , at [3] (emphasis added). Applying this new policy to the present case, La

bor concluded that a significant portion of the workers at EDS were enga ged in the production of articles based on its findings that “ the former employe es spent a considerable amount of their work time on the development of significant enhancements that include new code , and the development of totally ne w software.” Notice of Revised Determination on Remand , EDS at [6]. Consequently, La bor determined that “[a]ll workers of [EDS], who became totally or partially separated from employ

ment on or after December 27, 2001, through two y ears from the issuance of this revised determination, ar e eligible to apply f

or Trade Adjustment Assistance under section 223 of the Tra de Act of 1974.” Notice of Revised Determination on Remand , EDS , at [8]. In a letter dated April 12, 2006, Plaintiffs informed the court that they have no adverse comments to offer and wa ived their right to file co mments on th e reman d results.Court No. 03-00373 Page 3

Upon consideration of Labor’ s remand determination, Notice of Revised Determination of Remand , the cour

t’s prior opinions in

this case , and othe

r paper s and proc eeding s filed he rein; it is hereby ORDERED th at La

bor’s de cision to c ertify

Plaintiff s to rece ive TAA b enefits i s supported by substantial evidenc e and is otherwise in accordance with law; a nd it is further ORDERED th at La

bor’s Notice of Revised Determination on Remand filed on March 24, 20 06 , i s a ff

ir me d i n i ts en ti re ty.

April 17, 2006 /s/ Judith M. Barzilay Dated: ___________________

___________________________ New York, NY Judi th M. Barzi lay, Jud ge