NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-1588, 2007-1068

FORMER EMPLOYEES OF IBM CORPOR ATION, GLOBAL SERVICES DIVISION, JAMES FUSCO, BARBARA L. PINEAU, DICK YOUNG, and JOHN F. LAKE (on behalf of a ll 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. Wi th him on the brief was Michael G. Smith , of Washington, DC. Michael D. Panzera , Trial Attorney, Commercial Li tigation 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 Appealed from: United States C ourt of International Trade Judge Judith M. BarzilayNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-1588, 2007-1068

FORMER EMPLOYEES OF IBM CORPORAT ION, GLOBAL SERVICES DIVISION, JAMES FUSCO, BARBARA L. PINEAU, DICK YOUNG, and JOHN F. LAKE (on behalf of a ll others similarly situated), Plaintiffs-Appellants,

v. Elaine Chao, SECRETARY OF LABOR, Defendant-Appellee. Appeals from the United States Court of In ternational 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, Un ited States District Court for the Western District of Texas, Austin Division, sitting by designation. Appellants Former Employees of IBM Cor poration, Global Services Division and James Fusco (collectively the A IBM Employees @ ); and Barbara L. Pineau, Dick Young, and John F. Lake (on behalf of all others si milarly situated) (collectively the A Computer Horizons Employees @ ) filed consolidated appeals challenging three holdings of the Court of International Trade ( A CIT @ ) in a trade-adjustment-assistance ( A TAA @ ) dispute. Appellants contend the CIT erred in dismissi ng certain of their claims for lack of jurisdiction; denyingAppellants = motion for class certification; and denying Appellants = application for attorney = s fees and expenses under the Equal A ccess to Justice Act, 28 U.S.C. ' 2412 (2006). We affirm

. BACKGROUND Appellants were software programmers w ho worked at either IBM Corporation = s Global Services Division in Piscataway or Middl etown, New Jersey (the IBM Employees) or at Computer Horizons Corporat ion in Irving, Texas (the Comput er Horizons Employees). In 2002, Appellants were separated from their re spective employment and later that same year petitioned the D epartment of Labor (the A Department @ ) for certification of TAA eligibility under the Trade Act of 1974 ( A Trade 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

A article @ who lose their jobs due to increased competition from A foreign articles @ or due to the shifting of producti on abroad. 19 U.S.C. ' 2272(a)(2000). An app licant must file a petition with the Department requesting cert ification for assistance eligibility. See 19 U.S.C. ' 2271(a). Following an investi gation, 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 A article @ under section 222 of the Trade Act, 19 U.S.C. ' 2272(a). See Notice of Determination Regar ding Eligibility to Apply for Worker Adjustment Assistance and NA FTA Transitional Adjustment Assistance , 68 Fed. Reg. 16,833-01 (Dep = t of Labor Apr. 7, 2003). On Apr il 29, 2003, the IBM Employees filed a Request for Administrative Reconsideration of the Department = s denial of their petition for

2006-1588, 2007-1068 2TAA. The Computer Horizons Employees di d 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 pl aintiffs 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 matte r 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 certific ation 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 addr ess the Computer Horizons Employees = claims on the merits, but stated only A the Computer Horizons [Employees] did not file a request for reconsideration wit h [the Department], and they did not appeal the negative determination to this court within t he 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 32006-1588, 2007-1068 4 On April 10, 2006, the CIT granted the Department a vo luntary partial remand, following the Department = s motion, to conduct further investigation and to make a redetermination as to whether t he 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 A article @ (computer software) and that a significant number of the employees lost their employment due to the shifting of production to Canada and certified t he 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, t he 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 r endered 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 not es in a footnote that the Computer Horizons Employees were not included in the judgment affirming certif ication, as they had been

A dismissed @ by the CIT = s August 1, 2005 order remanding t he 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 Em ployees 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 dismi ss either the ComputerHorizons 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 followi ng the August 1, 2005 order purporting to A dismiss @ the Computer Horizons Employees, includes a discussion regarding the Computer Horizons Employees as named pl aintiffs and fails to reference the prior dismissal in the August 1, 2005 order. Our jurisdiction is limited to an appeal from a A final decision @ of the CIT. 28 U.S.C. ' 1295(a)(5) (2006). The United States Suprem e Court has stated that a final decision “generally is one which ends the litigation on the merits and leav es 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). A The finality of a court = s decision is not determined by t he way the court characterize s the decision. Rather, the question to be answered is whether any iss ues 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 di smiss 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 t hat the Computer Horizons Employees may not invoke the CIT = s jurisdiction. Additionally, the June 21, 2006 judgment notes the CIT = s intended dismissal of t he 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 CI T. Therefore, we hold that the CIT = s judgment is final.

2006-1588, 2007-1068 5Following the CIT = s judgment, the IBM Employees file d 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 jurisdicti on 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 ce rtification for an abus e 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 whic h 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 A prevailing 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 6Jurisdiction The CIT determined that the Computer Hori zons Employees failed to exhaust their administrative remedies, thereby divesting the court of subj ect-matter jurisdiction. On appeal, the Computer Horizons Employees asse rt that their failure to exhaust is not jurisdictional, but a statute-of- limitations defense t hat 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 Comput er Horizon Employees was expressly based on their failure to A appeal the negative determination of [the CIT] within the 60-day time period following t he 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 s eeking judicial review under section 2636(d) constitutes a jurisdictional c ondition precedent to su it, 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 dismiss ed 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 a ffirmative defense, the statute of limitations is not a condition precedent and, cons equently, a plaintiff is not required to plead

2006-1588, 2007-1068 7and prove compliance wit h 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 excl usion 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, fa ilure 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 recent ly addressed the dist inction 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 hel d that the special statute of limitations governing suits agains t the United States in the C ourt of Federal Claims sets forth a jurisdictional limitations period not subject to waiver or equitable tolling. Id . at 755. Noting that federal law typica lly 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 interest s 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 C ourt as more absolute or A jurisdictional, @ prohibiting a court = s consideration of a litigant = s untimely claims. Id . Thus, this court must interpret the scope of the limitations in the applicabl e 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 Departm ent constitutes a jurisdictional condition

2006-1588, 2007-1068 8precedent 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 condi tion precedent if it is fixed in the statute that creates the c ause 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 cognizabl e 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 pl ain 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 pl ain language of the statue and A may 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 Secr etary of Labor under section 223 of the Trade Ac t 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 A barred @ unless filed within 60 days after the date of notice of the Department = s determination, failure to comply with the terms divests the c ourt 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). Ther efore, we affirm the CIT = s holding dismissing the Computer Horizons Employees = claims for lack jurisdiction.

2006-1588, 2007-1068 9Class 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 jurisd iction to entertain their claims by granting them cl ass 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 ma y sue or be sued as representative parties on behalf of all only if (1) the cla ss is so numerous that joinder of all members is impracticable, (2) there ar e 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 cla ss, and (4) the repres entative parties will fairly and adequately protect the interest of the class.
USCIT R. 23(a). 3 Appellants assert that A valid estimates @ are not required and that they have proved that A tens of thousands, or more @ software workers qualify as members of the class. With regard to commonality, Appellant s 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 t he common legal issue of whether software qualifies as an article under the Trade Act. Fina lly, Appellants contend t hat 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 t he fourth prerequisite of fair and adequate protection of the interest of the class.

2006-1588, 2007-1068 10In response, the Department argues t hat Appellants misinterpret the CIT = s rejection of Appellants = estimated numbers of qualifying softw are 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 cla ss because certain groups of software workers face differing determinations by the Department regarding TAA certific ation. Indeed, the CIT = s order cites several determinations by t he Department certifying certain groups of software workers. As for Appellants = argument in favor of par tial certification, the Department argues that becaus e the proposed subclasses creat ed by Appellants fail to distinguish among software workers based upon t he multiple statutor y criteria upon which the Department bases its determinations, Appe llants 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 Appell ants fails to support a finding of commonality among the class members simply categorized as A software workers. @ Although Appellants = claim that all potential class members are s ubject to the same overarching legal issue regarding TAA certification, t he evidence presented by the Depar tment and cited by the CIT indicate that certain members of Appellants = proposed class have been granted certification while others have not, thereby destroying commona lity 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 11The IBM Employees assert that they are entitled to an award of attorney = s fees as

A prevailing parties @ because they secured a remand resu lting 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 r equested nor resulted in a determination in Appellants = favor upon remand. As to the second re mand, the CIT found that the favorable decision upon remand resulted from the Department = s voluntary decision to remand and did not stem from an eval uation 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 T AA 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 A must show that it obtained an enfor ceable 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 A where the plaintiff secures a remand requiring further agency proceedings because of alleged error by the agency, the plaintiff qualifie s 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 t he 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 12the Department. See Rice Servs. , 405 F.3d at 1027. We conc lude 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 re mand, ordering the action

A remanded to the United States D epartment 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 T AA certification in li ght of the Department = s changed policies regarding the eligibility of benefits for A workers who produce software not embodied in a tangible medium. @ We find that the circum stances 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.

A A defendant = s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by t he 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 es tablishing 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 A corresponding alternation in t he 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 me rits 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 13IBM Employees are not preva iling 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 certificat ion, 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