NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

 

 2006-1588, 2007-1068 

FORMER EMPLOYEES OF IBM CORPORATION, GLOBAL SERVICES DIVISION, 

JAMES FUSCO, BARBARA L. PINEAU, DICK YOUNG, 

and JOHN F. LAKE (on behalf of all others similarly situated), 

 Plaintiffs-Appellants, 

v. 

Elaine Chao, SECRETARY OF LABOR, 

 Defendant-Appellee. 

Jean-Claude André, Ivey, Smith & Ramirez, of Los Angeles, California, argued for 

plaintiffs-appellants. With him on the brief was Michael G. Smith, of Washington, DC. 

Michael D. Panzera, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, argued for defendant-appellee. 

With him on the brief were Jeanne E. Davidson, Director, and Patricia M. McCarthy, 

Assistant Director. Of counsel on the brief was Stephen Jones, Office of the Solicitor, 

United States Department of Labor, of Washington, DC. 

Appealed from: United States Court of International Trade 

Judge Judith M. Barzilay 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2006-1588, 2007-1068 

FORMER EMPLOYEES OF IBM CORPORATION, GLOBAL SERVICES DIVISION, 

JAMES FUSCO, BARBARA L. PINEAU, DICK YOUNG, 

and JOHN F. LAKE (on behalf of all others similarly situated), 

Plaintiffs-Appellants, 

v. 

Elaine Chao, SECRETARY OF LABOR, 

 Defendant-Appellee. 

Appeals from the United States Court of International Trade in case no. 03-CV-00656, 

Judge Judith M. Barzilay. 

_______________________________ 

DECIDED: September 3, 2008 

_______________________________ 

Before RADER and MOORE, Circuit Judges, and YEAKEL, District Judge.* 

YEAKEL, District Judge. 

 

* Honorable Lee Yeakel, District Judge, United States District Court for the 

Western District of Texas, Austin Division, sitting by designation. 

Appellants Former Employees of IBM Corporation, Global Services Division and 

James Fusco (collectively the AIBM Employees@); and Barbara L. Pineau, Dick Young, and 

John F. Lake (on behalf of all others similarly situated) (collectively the AComputer Horizons 

Employees@) filed consolidated appeals challenging three holdings of the Court of 

International Trade (ACIT@) in a trade-adjustment-assistance (ATAA@) dispute. Appellants 

contend the CIT erred in dismissing certain of their claims for lack of jurisdiction; denying 
Appellants= motion for class certification; and denying Appellants= application for attorney=s 

fees and expenses under the Equal Access to Justice Act, 28 U.S.C. ' 2412 (2006). We 

affirm. 

BACKGROUND

Appellants were software programmers who worked at either IBM Corporation=s 

Global Services Division in Piscataway or Middletown, New Jersey (the IBM Employees) or 

at Computer Horizons Corporation in Irving, Texas (the Computer Horizons Employees). In 

2002, Appellants were separated from their respective employment and later that same 

year petitioned the Department of Labor (the ADepartment@) for certification of TAA eligibility 

under the Trade Act of 1974 (ATrade Act@), 19 U.S.C. '' 2251-2495 (2005 & Supp. 2007). 

The Trade Act offers certain forms of TAA to workers involved in the production of an 

Aarticle@ who lose their jobs due to increased competition from Aforeign articles@ or due to 

the shifting of production abroad. 19 U.S.C. ' 2272(a)(2000). An applicant must file a 

petition with the Department requesting certification for assistance eligibility. See 19 U.S.C. 

' 2271(a). Following an investigation, the Department issues a determination granting or 

denying the petition. If the petition is denied, the applicant may seek reconsideration by the 

Department and judicial review by the CIT. See 19 U.S.C. ' 2395; 29 C.F.R. '' 9018-19. 

On March 23, 2003, the Department denied both sets of employees= petitions on the 

basis that neither of Appellants= employers produced an Aarticle@ under section 222 of the 

Trade Act, 19 U.S.C. ' 2272(a). See Notice of Determination 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). On April 29, 2003, the IBM Employees filed 

a Request for Administrative Reconsideration of the Department=s denial of their petition for 

2006-1588, 2007-1068 2
TAA. The Computer Horizons Employees did not seek reconsideration of the Department=s 

decision. On June 26, 2003, the Department issued its reconsideration determination 

affirming its earlier decision denying TAA to the IBM Employees. See 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). 

On September 1, 2003, James Fusco, on behalf of the IBM Employees, sought 

judicial review before the CIT of the Department=s decision. An amended complaint added 

the Computer Horizons Employees as plaintiffs and added class-action allegations on 

behalf of all software workers who were or would be denied TAA certification under the 

Department=s decision that production of software is not production of an article under the 

Trade Act.1

On August 1, 2005, the CIT remanded the matter to the Department with instructions 

to supplement the record by further investigation. See IBM Corp., Global Serv. Div. v. U.S. 

Sec=y of Labor, 387 F. Supp. 2d 1346, 1353 (Ct. Int=l Trade 2005).2 On remand, the 

Department again denied TAA certification to the IBM Employees. See 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). The Department=s determination did not address 

the Computer Horizons Employees. 

 1

 A Second Amended Complaint was filed on January 21, 2004.

2

 The CIT=s August 1, 2005 order did not address the Computer Horizons 

Employees= claims on the merits, but stated only Athe Computer Horizons [Employees] did 

not file a request for reconsideration with [the Department], and they did not appeal the 

negative determination to this court within the 60-day time period following the publication 

of the negative determination, as required by 28 U.S.C. ' 2636(d).@ IBM Corp., Global 

Serv. Div. v. U.S. Sec=y of Labor, 387 F. Supp. 2d 1346, 1349 (Ct. Int=l Trade 2005).

2006-1588, 2007-1068 3
2006-1588, 2007-1068 4

On April 10, 2006, the CIT granted the Department a voluntary partial remand, 

following the Department=s motion, to conduct further investigation and to make a 

redetermination as to whether the IBM Employees were eligible for TAA certification in light 

of recent changes in TAA policy. In a revised decision rendered on May 15, 2006, the 

Department determined that the IBM Employees did produce an Aarticle@ (computer 

software) and that a significant number of the employees lost their employment due to the 

shifting of production to Canada and certified the IBM Employees as eligible for TAA. See

IBM Corporation, Global Services Division, Piscataway, N.J.; Notice of Revised 

Determination on Remand, 71 Fed. Reg. 29,183-01, 29,183 (Dep=t of Labor May 15, 2006). 

Following the Department=s revised determination, the CIT rendered an order 

denying Appellants= motion for class certification on June 20, 2006. The CIT determined 

that Appellants failed to show commonality among the potential class members. On June 

21, 2006, the CIT rendered judgment affirming the Department=s determination certifying 

the IBM Employees= petition for TAA. See IBM Corp., Global Serv. Div. v. U.S. Sec=y of 

Labor, 435 F. Supp. 2d 1335, 1336 (Ct. Int=l Trade 2006). The IBM Employees and the 

Computer Horizons Employees appealed to this court. 

The June 21, 2006 judgment notes in a footnote that the Computer Horizons 

Employees were not included in the judgment affirming certification, as they had been 

Adismissed@ by the CIT=s August 1, 2005 order remanding the matter to the Department. 

See id. at n.1. This court=s examination of the August 1, 2005 order, however, reveals that 

although the CIT notes that the Computer Horizons Employees did not appeal the 

Department=s negative determination in a timely manner as required by statute, see 28 

U.S.C. ' 2636(d) (2006), the order does not expressly dismiss either the Computer 
Horizons Employees or their claims. See IBM Corp., 387 F. Supp. 2d at 1353. In addition, 

the CIT=s order denying Appellants= motion for class certification, rendered just one day 

before the June 21, 2006 judgment and ten months following the August 1, 2005 order 

purporting to Adismiss@ the Computer Horizons Employees, includes a discussion regarding 

the Computer Horizons Employees as named plaintiffs and fails to reference the prior 

dismissal in the August 1, 2005 order. 

Our jurisdiction is limited to an appeal from a Afinal decision@ of the CIT. 28 U.S.C. 

' 1295(a)(5) (2006). The United States Supreme Court has stated that a final decision 

“generally is one which ends the litigation on the merits and leaves nothing for the court to 

do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945); see also 

Van Cauwenberghe v. Biard, 486 U.S. 517, 521-22 (1988). AThe finality of a court=s 

decision is not determined by the way the court characterizes the decision. Rather, the 

question to be answered is whether any issues remain to be decided by the court.@ View 

Eng=g, Inc. v. Robotic Vision Sys., Inc., 115 F.3d 962, 963-64 (Fed. Cir. 1997) (citing Catlin, 

324 U.S. at 233-34). 

In this case, the CIT failed to properly dismiss the Computer Horizons Employees as 

plaintiffs. However, both the August 1, 2005 order remanding the case to the Department 

and the June 20, 2006 order denying class certification state that the Computer Horizons 

Employees may not invoke the CIT=s jurisdiction. Additionally, the June 21, 2006 judgment 

notes the CIT=s intended dismissal of the Computer Horizons Employees for lack of 

subject-matter jurisdiction. Having reviewed all of the CIT=s orders in this cause, we find 

that no issue remains to be decided by the CIT. Therefore, we hold that the CIT=s judgment 

is final. 

2006-1588, 2007-1068 5
Following the CIT=s judgment, the IBM Employees filed an Application for Attorneys=

Fees and Other Expenses under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 

2412 (2006). The CIT denied the IBM Employees= application, finding that the IBM 

Employees were not “prevailing parties” under the EAJA. The IBM Employees timely 

appealed. 

DISCUSSION

Standard of review

The three issues on appeal have separate and distinct standards of review. 

Decisions regarding the jurisdiction of the CIT are subject to de novo review. See Xerox v. 

United States, 423 F.3d 1356, 1359 (Fed. Cir. 2005); Friedman v. Daley, 156 F.3d 1358, 

1360 (Fed. Cir. 1998). 

This court reviews a denial of class certification for an abuse of discretion. See

Concol. Edison Co. of New York, Inc. v. Richardson, 233 F.3d 1376, 1380 (Fed. Cir. 2000) 

(citing Califano v. Yamasaki, 442 U.S. 682, 701 (1979). 

An abuse of discretion may be found when (1) the court=s decision is clearly 

unreasonable, arbitrary, or fanciful; (2) the decision is based on an erroneous 

conclusion of the law; (3) the court=s findings are clearly erroneous; or (4) the 

record contains no evidence upon which the court rationally could have 

based its decision. 

Hendler v. United States, 952 F.2d 1364, 1380 (Fed. Cir. 1991) (citing Western Elec. Co. 

Inc. v. Piezo Tech., Inc., 860 F.2d 428, 429-30 (Fed. Cir. 1988)). 

The question of whether Appellants are Aprevailing parties@ under EAJA is an issue 

of law that we review without deference to the CIT=s decision. Former Employees of 

Motorola Ceramic Prods. v. United States, 336 F.3d 1360, 1366 (Fed. Cir. 2003) (citing 

Brickwood Contractors, Inc. v. United States, 288 F.3d 171, 1376 (Fed. Cir. 2002)). 

2006-1588, 2007-1068 6
Jurisdiction

The CIT determined that the Computer Horizons Employees failed to exhaust their 

administrative remedies, thereby divesting the court of subject-matter jurisdiction. On 

appeal, the Computer Horizons Employees assert that their failure to exhaust is not 

jurisdictional, but a statute-of-limitations defense that the Department waived by failing to 

raise it before filing its answer. 

In response, the Department contends that although the CIT erroneously states that 

its jurisdiction was divested by the Computer Horizons Employees= failure to exhaust their 

administrative remedies, the CIT=s dismissal of the Computer Horizon Employees was 

expressly based on their failure to Aappeal the negative determination of [the CIT] within the 

60-day time period following the publication of the [Department=s] negative determination, 

as required by 28 U.S.C. ' 2636(d).@ IBM Corp., Global Serv. Div., 387 F. Supp. 2d at 

1349. The Department argues that the statutory time limit for seeking judicial review under 

section 2636(d) constitutes a jurisdictional condition precedent to suit, and the Computer 

Horizons Employees= failure to appeal within the 60-day deadline barred them from seeking 

review by the CIT. See Kelley v. Sec=y, U.S. Dep=t of Labor, 812 F.2d 1378, 1380 (Fed. Cir. 

1987); Georgetown Steel Corp. v. United States, 801 F.2d 1308, 1312 (Fed. Cir. 1986). 

Thus, the Department argues, the CIT properly dismissed the Computer Horizons 

Employees= claims for lack of jurisdiction. We agree. 

Under federal law, a statute of limitations is an affirmative defense to be pleaded and 

proved by a defendant. See Fed. R. Civ. P. 8(c). As an affirmative defense, the statute of 

limitations is not a condition precedent and, consequently, a plaintiff is not required to plead 

2006-1588, 2007-1068 7
and prove compliance with the statute. See 5 Wright & A. Miller, Federal Practice and 

Procedure § 1276 (3d Ed. 2004). A defendant=s failure to plead an affirmative defense will 

result in the waiver of that defense and its exclusion from the case. See id. at ' 1278. A 

jurisdictional condition precedent to suit, however, is a condition or time limitation required 

to create a cause of action that is fixed by statute. See Fishman by Fishman v. Delta Air 

Lines, Inc., 132 F.3d 138, 143 (2d Cir. 1998). Thus, failure to comply with the terms and 

conditions of such a statute bars a litigant=s access to the court. See id. 

The United States Supreme Court recently addressed the distinction between a 

statute-of-limitations defense and a jurisdictional precedent to suit. John R. Sand & Gravel 

Co. v. United States, 128 S. Ct. 750 (2008). The Court held that the special statute of 

limitations governing suits against the United States in the Court of Federal Claims sets 

forth a jurisdictional limitations period not subject to waiver or equitable tolling. Id. at 755. 

Noting that federal law typically treats a limitations defense as an affirmative defense that 

the defendant must raise at the pleadings stage, the Court found that some statutes of 

limitations, seeking to protect special interests in timeliness, intend to limit the scope of 

governmental waiver or sovereign immunity. Id. at 753. The time limits of these statutes 

have been interpreted by the Court as more absolute or Ajurisdictional,@ prohibiting a court=s 

consideration of a litigant=s untimely claims. Id. Thus, this court must interpret the scope of 

the limitations in the applicable statute to determine whether the language of the statute 

intends to bar untimely filed claims. 

The question before us is whether the 60-day deadline for commencing actions 

contesting a final determination of the Department constitutes a jurisdictional condition 

2006-1588, 2007-1068 8
precedent to suit, barring the Computer Horizon Employees= appeal as untimely filed. See

28 U.S.C. ' 2636(d). 

Ordinarily, a time limitation is deemed a condition precedent if it is fixed in the 

statute that creates the cause of action, whereas a statutory time limitation 

must be pleaded as the affirmative defense of a statute of limitations if the 

cause of action was previously cognizable either at common law or by virtue 

of another statute. 

Fishman by Fishman, 132 F.3d at 143. A[T]he starting point for interpreting a statute is the 

language of the statute itself.@ Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 

U.S. 102, 108 (1980). When the plain text of a statute predicating access to federal courts 

is clear, this court need go no further in its analysis. See Hallstrom v. Tillamook County, 

493 U.S. 20, 31 (1989). Likewise, when Congress specifies a precise procedure to gain 

access to federal court, the court must apply the “mandatory conditions precedent to 

commencing suit” under the plain language of the statue and Amay not disregard these 

requirements at its discretion.@ Id. Thus, if an action is barred by the terms of a statute, it 

must be dismissed. Id. 

Section 2636(d) provides in pertinent part: 

A civil action contesting a final determination of the Secretary of Labor under 

section 223 of the Trade Act of 1974 . . . is barred unless commenced in 

accordance with the rules of the Court of International Trade within sixty days 

after the date of notice of such determination. 

28 U.S.C. ' 2636(d). Since Section 2636(d) specifies that a plaintiff=s action is Abarred@

unless filed within 60 days after the date of notice of the Department=s determination, failure 

to comply with the terms divests the court of jurisdiction over the plaintiff=s claims. See 

United States v. Mitchell, 445 U.S. 535, 538 (1980); Georgetown Steel Corp. v. U.S., 801 

F.2d 1308 (Fed. Cir. 1986). Therefore, we affirm the CIT=s holding dismissing the 

Computer Horizons Employees= claims for lack jurisdiction. 

2006-1588, 2007-1068 9
Class certification

In its denial of Appellants= Motion for Class Certification, the CIT held that Appellants 

did not meet the criteria for class certification because (1) they failed to offer valid estimates 

of the number of individuals in the class, (2) the proposed class encompassed workers 

facing drastically varying questions of law and fact, thereby lacking commonality, and (3) 

the proposed class included individuals over which the court lacked jurisdiction to entertain 

their claims by granting them class certification. Rule 23(a) of the Rules of the Court of 

International Trade provides the following prerequisites for class certification: 

One or more members of a class may sue or be sued as representative 

parties on behalf of all only if (1) the class is so numerous that joinder of all 

members is impracticable, (2) there are questions of law or fact common to 

the class, (3) the claims or defenses of the representative parties are typical 

of the claims or defenses of the class, and (4) the representative parties will 

fairly and adequately protect the interest of the class. 

USCIT R. 23(a).3

 Appellants assert that Avalid estimates@ are not required and that they 

have proved that Atens of thousands, or more@ software workers qualify as members of the 

class. With regard to commonality, Appellants argue that all members of the class raise a 

common legal issue, and that differences in the factual backgrounds of the individual 

members will not affect the outcome of the common legal issue of whether software 

qualifies as an article under the Trade Act. Finally, Appellants contend that the inclusion of 

the Computer Horizons Employees is not fatal to class certification because the CIT has the 

discretion to partially certify certain subclasses pursuant to Rule 23(c)(4) of the Rules of the 

Court of International Trade. 

 3

 The CIT did not reach the fourth prerequisite of fair and adequate protection 

of the interest of the class.

2006-1588, 2007-1068 10
In response, the Department argues that Appellants misinterpret the CIT=s rejection 

of Appellants= estimated numbers of qualifying software workers, noting that the CIT=s 

findings are based upon Appellants= assumption that the Department denies TAA 

certification to all software workers. Appellants= erroneous assumption, the Department 

argues, also destroys commonality in the class because certain groups of software workers 

face differing determinations by the Department regarding TAA certification. Indeed, the 

CIT=s order cites several determinations by the Department certifying certain groups of 

software workers. As for Appellants= argument in favor of partial certification, the 

Department argues that because the proposed subclasses created by Appellants fail to 

distinguish among software workers based upon the multiple statutory criteria upon which 

the Department bases its determinations, Appellants have failed to establish that their 

claims are typical of those of the proposed class. 

We hold that the CIT=s denial of class certification does not constitute an abuse of 

discretion. The evidence presented by Appellants fails to support a finding of commonality 

among the class members simply categorized as Asoftware workers.@ Although Appellants=

claim that all potential class members are subject to the same overarching legal issue 

regarding TAA certification, the evidence presented by the Department and cited by the CIT 

indicate that certain members of Appellants= proposed class have been granted certification 

while others have not, thereby destroying commonality as to the applicable question of law 

for all members of the proposed class. Therefore, we affirm the CIT=s holding denying 

class certification. 

EAJA claim

2006-1588, 2007-1068 11
The IBM Employees assert that they are entitled to an award of attorney=s fees as 

Aprevailing parties@ because they secured a remand resulting in the relief they requested 

while the CIT retained jurisdiction. See Motorola, 336 F.3d at 1366. The CIT found that its 

initial remand neither mandated the relief requested nor resulted in a determination in 

Appellants= favor upon remand. As to the second remand, the CIT found that the favorable 

decision upon remand resulted from the Department=s voluntary decision to remand and did 

not stem from an evaluation of Appellants= claims. Therefore, the CIT concluded, 

Appellants do not qualify as prevailing parties under the EAJA. 

To establish prevailing-party status on their claim for TAA certification, Appellants 

must demonstrate success upon the merits of their claim. See Buckhannon Bd. & Care 

Home, Inc. v. W. Virginia Dep=t of Health & Human Res., 532 U.S. 598, 603 (2001). An 

EAJA applicant Amust show that it obtained an enforceable judgment on the merits or a 

court-ordered consent decree that materially altered the legal relationship between the 

parties, or the equivalent of either of those.@ Rice Servs., Ltd. v. United States, 405 F.3d 

1017, 1025 (Fed. Cir. 2005). In Motorola, we did not hold that every remand to an 

administrative agency constitutes a grant of relief on the merits, but found that Awhere the 

plaintiff secures a remand requiring further agency proceedings because of alleged error by 

the agency, the plaintiff qualifies as a prevailing party . . . when successful in the remand 

proceedings where there has been a retention of jurisdiction.@ 336 F.3d at 1366. 

Therefore, in order for the IBM Employees to achieve prevailing-party status, we must 

conclude that the CIT=s remand order was the equivalent of a judgment on the merits or a 

court-ordered consent decree. That is, we must conclude that the order carried sufficient 

judicial imprimatur to materially alter the legal relationship between the IBM Employees and 

2006-1588, 2007-1068 12
the Department. See Rice Servs., 405 F.3d at 1027. We conclude that the remand order 

and subsequent Judgment in this case did not have such a legal effect. The CIT=s remand 

order granted the Department=s consent motion for partial remand, ordering the action 

Aremanded to the United States Department of Labor to conduct a further investigation and 

to make a redetermination as to whether the [IBM Employees] are eligible for [TAA 

certification].@ The Department sought a voluntary remand to determine whether the IBM 

Employees met the statutory criteria for TAA certification in light of the Department=s 

changed policies regarding the eligibility of benefits for Aworkers who produce software not 

embodied in a tangible medium.@ We find that the circumstances surrounding the second 

remand in this case do not meet the criteria established in Motorola for Appellants to qualify 

as prevailing parties under the EAJA.

AA defendant=s voluntary change in conduct, although perhaps accomplishing what 

the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the 

change.@ Buckhannon, 532 U.S. at 605. In Buckhannon, the Supreme Court rejected the 

so-called “catalyst theory” as a basis for establishing prevailing-party status because “[the 

‘catalyst theory’] allows an award where there is no judicially sanctioned change in the legal 

relationship of the parties.@ Id. The Department=s change in policy, voluntary remand, and 

redetermination did not result in a Acorresponding alternation in the legal relationship of the 

parties.@ Id. The CIT did not decide the merits of the IBM Employees= claims. Unlike 

Motorola, the Department in this case did not concede error, and the IBM Employees did 

not secure a judgment on the merits of their claims because their claims became moot 

under the Department=s new policy as applied upon remand. Therefore, we hold that the 

2006-1588, 2007-1068 13
IBM Employees are not prevailing parties, and affirm the CIT=s denial of attorney=s fees and 

expenses under the EAJA. 

CONCLUSION

We affirm the Court of International Trade=s dismissal of the claims of the Computer 

Horizon Employees, the denial of Appellants= motion class certification, and the denial of 

the IBM Employees= application for attorney=s fees and expenses under the Equal Access 

to Justice Act. 

2006-1588, 2007-1068 14