Former Employees of Benee's, Inc. v. United States Secretary of Labor , 29 Ct. Int'l Trade 1256 ( 2005 )

SLIP OP. 05-135
UNITED STATES COURT OF INTERNATIONAL TRADE
___________________________________
:
FORMER EMPLOYEES OF BENEE’S, INC. :
:
Plaintiffs, :
: Before: Richard K. Eaton,
: Judge
:
: Court No. 05-00378
v. :
:
:
UNITED STATES SECRETARY OF LABOR, :
:
Defendant. :
___________________________________:
[Defendant’s motion to dismiss denied]
Dated: October 14, 2005
Dennis Parent, pro se, for plaintiffs.
Peter D. Keisler, Assistant Attorney General, Civil
Division, United States Department of Justice; David M. Cohen,
Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice (Jefferson Hughes) for defendant.
MEMORANDUM AND ORDER
Eaton, Judge: This Trade Adjustment Assistance (“TAA”) case
is before the court on the Motion to Dismiss of defendant United
States Secretary of Labor. The basis for defendant’s motion is
its contention that the court lacks subject matter jurisdiction
because plaintiffs failed to seek judicial review of the negative
determination regarding TAA benefits within the sixty-day period
prescribed by statute. See Notice of Determination Regarding
Court No. 05-00378 Page 2
Eligibility to Apply for Worker Adjustment Assistance and NAFTA
Transitional Adjustment Assistance, 69 Fed. Reg. 57092 (Sept. 23,
2004), Admin. R. Doc. 24. The court has jurisdiction pursuant to
19 U.S.C. § 2395(c). For the reasons set forth below,
defendant’s Motion to Dismiss is denied.
STANDARD OF REVIEW
Where the court’s jurisdiction is challenged, “[t]he party
seeking to invoke the Court’s jurisdiction bears the burden of
proving the requisite jurisdictional facts.” Former Employees of
Sonoco Prods. Co. v. United States Sec’y of Labor, 27 CIT ___,
___, 273 F. Supp. 2d 1336, 1338 (2003) (citing McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 179 (1936)). At the same
time, in the context of a motion to dismiss, “the Court assumes
‘all well-pled factual allegations are true,’ construing ‘all
reasonable inferences in favor of the nonmovant.’” United States
v. Islip, 22 CIT 852, 854, 18 F. Supp. 2d 1047, 1051 (1998)
(quoting Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.
Cir. 1991)).
DISCUSSION
The facts, as set out in defendant’s papers, are as follows:
On September 13, 2004, the Department of Labor
(“Labor”) issued a negative determination for former
employees of Benee’s Inc. regarding eligibility to
apply for Trade Adjustment Assistant (“TAA”). This
Court No. 05-00378 Page 3
denial was published in the Federal Register on
September 23, 2004.
On March 24, 2005, Labor received from Mr. Dennis
Parent, a former employee of Benee’s, a facsimile copy
of a letter signed by Mr. Parent dated October 13,
2004. The letter requested that Labor reconsider its
negative determination as to the petition on behalf of
former Benee’s employees.
In a letter dated April 1, 2005, Labor declined Mr.
Parent’s request because it had “not receive[d] any
correspondence from [Mr. Parent] previously and there
[was] no evidence of [his] filing the request for
reconsideration prior to March 24, 2005,” and stated
that its previous denial notice was now final because
the filing period for administrative reconsideration
had expired.
Def.’s Mem. in Supp. Mot. Dismiss (“Def.’s Mem.”) at 1–2
(internal citations omitted).
Mr. Parent then appealed to this Court. See Letter from
Dennis Parent to U.S. Court of International Trade of 5/19/05.
In that letter, deemed a complaint by the Court Clerk,1 Mr.
Parent asserts that, in fact, he had requested reconsideration of
Labor’s negative determination within 30 days of the notice of
denial’s publication in the Federal Register: “I wish to appeal
the decision of the Department of Labor that I did not meet the
date deadline of 30 days after posting with [the] Federal
Register.” Id. Mr. Parent asserts that he emailed his request
for reconsideration on October 6, 2004. In addition, the record
1
See Letter from U.S. Court of International Trade to
Dennis Parent of 6/10/05.
Court No. 05-00378 Page 4
contains a copy of a letter dated October 13, 2004, in which Mr.
Parent requests reconsideration. See Letter from Dennis Parent
to U.S. Department of Labor of 10/13/04, Admin. R. Doc. 27. As
explained in defendant’s papers,
Mr. Parent stated that he had attached a copy of all
his correspondence, which included (1) a facsimile
cover page from his March 24, 2005, transmission; (2)
an unsigned letter dated October 6, 2004; and (3) an
unsigned letter dated November 17, 2004. Id. The
unsigned letter dated November 17, 2004, with the
exception of two minor changes in paragraph 7, is
identical to the signed letter dated October 13, 2004,
previously submitted by Mr. Parent to Labor on March
24, 2005, as evidence of an attempt to communicate with
Labor after publication of Labor’s adverse
determination.
Def.’s Mem. at 2–3.
The basis for defendant’s motion to dismiss is that the
court lacks subject matter jurisdiction because Mr. Parent failed
to appeal to this court within the sixty days prescribed by
statute2 following Labor’s final determination, which was
published on September 23, 2004, and failed to extend “the date
2
Title 19 U.S.C. § 2395(a) states in relevant part:
Any worker . . . aggrieved by a final
determination of the Secretary of Labor under
section 2273 of this title . . . may, within
sixty days after notice of such
determination, commence a civil action in the
United States Court of International Trade
for review of such determination.
Court No. 05-00378 Page 5
for appeal by timely3 requesting administrative reconsideration.”
Id. at 7. Defendant’s motion is therefore based on a question of
fact, i.e., whether plaintiff timely sought administrative
review. Although Mr. Parent, proceeding pro se, did not reply to
defendant’s motion to dismiss, the court must nonetheless make
its decision based on the complaint.
In the context of a motion to dismiss, “the Court assumes
‘all well-pled factual allegations to be true,’ construing ‘all
reasonable inferences in favor of the nonmovant.’” Islip, 22 CIT
at 854, 18 F. Supp. 2d at 1051 (quoting Gould, 935 F.2d at 1274);
Amoco Oil Co. v. United States, 234 F.3d 1374, 1376 (Fed. Cir.
2000). Thus, the court must assume that Mr. Parent’s assertions,
in his complaint, with respect to timely filing of his
application for reconsideration are true. Defendant’s
contentions to the contrary do not overcome this assumption. If
an examination of the facts should reveal that no timely request
was made, then Labor may make a new motion. In the context of a
3
Requests for administrative reconsideration of Labor
determinations are governed by 29 C.F.R. § 90.18, which states in
relevant part:
Any worker . . . aggrieved by a determination
. . . may file an application for
reconsideration of the determination . . . .
All applications must be in writing and must
be filed no later than thirty (30) days after
the notice of the determination has been
published in the Federal Register.
Court No. 05-00378 Page 6
motion to dismiss, however, establishment of the facts must wait
for another day. That being the case, defendant’s motion fails.
Therefore, it is hereby
ORDERED that defendant’s motion to dismiss is denied, and it
is further
ORDERED that the defendant file an answer to plaintiff’s
complaint no later than November 21, 2005.
/s/Richard K. Eaton
Richard K. Eaton
Dated: October 14, 2005
New York, New York