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