Former Employees of Sonoco v. U.S. Sec.

• Citation: 273 F.Supp.2d 1336
• Decision Date: 09 June 2003
• Docket Number: Court No. 02-00579.,SLIP OP. 03-62.
• Parties: FORMER EMPLOYEES OF SONOCO PRODUCTS CO., Plaintiffs, v. UNITED STATES SECRETARY OF LABOR, Defendant.
• Court: U.S. Court of International Trade

273 F.Supp.2d 1336

FORMER EMPLOYEES OF SONOCO PRODUCTS CO., Plaintiffs, v. UNITED STATES SECRETARY OF LABOR, Defendant.

SLIP OP. 03-62.

Court No. 02-00579.

United States Court of International Trade.

June 9, 2003.

Baker & McKenzie, Chicago, IL, (Lynn S. Preece and Bart M. McMillan) for Dorothy Fail and the Former Employees of Sonoco Products Co., plaintiffs.

Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Lucius B. Lau, Assistant Director, and Victoria L. Strohmeyer) for the United States Secretary of Labor, defendant.

BEFORE: Senior Judge NICHOLAS TSOUCALAS.

MEMORANDUM OPINION

TSOUCALAS, Senior Judge.

Defendant, the United States Secretary of Labor ("Labor"), moves to dismiss the action filed by Dorothy Fail ("Ms.Fail"),¹ on behalf of the Former Employees of Sonoco Products Co. ("plaintiffs"), pursuant to USCIT R. 12(b)(1), for lack of subject matter jurisdiction. Plaintiffs commenced this action to appeal the negative determination issued by Labor, and published in the Federal Register on May 17, 2002, regarding plaintiffs' eligibility to apply for transitional adjustment assistance under the North American Free Trade Agreement-Transitional Adjustment Assistance Implementation Act ("NAFTA-TAA"). See Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment Assistance and NAFTA Transitional Adjustment Assistance ("Negative Determination"), 67 Fed.Reg. 35,140 (May 17, 2002). Labor contends that plaintiffs failed to seek judicial review within the sixty-day period prescribed by 19 U.S.C. § 2395(a) (2000)² and 28 U.S.C § 2636(d) (2000), which began to run on the date that the Negative Determination was published in the Federal Register and that, accordingly, this case should be dismissed.

JURISDICTION

The Court has jurisdiction to resolve this matter pursuant to 19 U.S.C. § 2395(c) (2000) and 28 U.S.C. §§ 1581(d), 2636(d) (2000).

STANDARD OF REVIEW

The party seeking to invoke this Court's jurisdiction bears the burden of proving the requisite jurisdictional facts. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). In this action, the burden of establishing jurisdiction falls on the plaintiffs. The Court will accept as true all facts alleged in the plaintiffs' pleadings. See Corrpro Cos., Inc. v. United States, No. 01-00745, 2003 WL 21293819, *1 (CIT June 4, 2003) (not yet published in Federal Supplement or CIT reporters). "A party, or the court sua sponte, may address a challenge to subject matter jurisdiction at any time, even on appeal." Booth v. United States, 990 F.2d 617, 620 (Fed.Cir.1993) (citations omitted and emphasis in original).

It is well established that the United States, as sovereign, is immune from suit, unless it consents to be sued. See United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (citing United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). A waiver of such sovereign immunity "must be unequivocally expressed" by statute and will be "strictly construed ... in favor of the sovereign." Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (citations omitted). The Court will construe ambiguities concerning the statutory language regarding the waiver of sovereign immunity in favor of immunity. See United States v. Williams, 514 U.S. 527, 531, 115 S.Ct. 1611, 131 L.Ed.2d 608 (1995) (citing United States v. Nordic Vill., Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992)).

DISCUSSION

I. Background

On February 26, 2002, Sonoco Products Company ("Sonoco"), located in Lincolnton, North Carolina, filed a NAFTA-TAA petition on behalf of seventy-four affected workers for trade adjustment assistance under Section 221(a) of the Trade Act of 1974, as amended, 19 U.S.C. § 2271(a) (2000). See Admin. R. Pub. File ("Admin.R.") at 2-3; Investigations Regarding Certifications of Eligibility to Apply for NAFTA Transitional Adjustment Assistance, 67 Fed.Reg. 16,447, 16,448 (Apr. 5, 2002). On May 3, 2002, Labor made a negative determination regarding plaintiffs' eligibility to apply for NAFTA transitional adjustment assistance and notice of such determination was published in the Federal Register on May 17, 2002. See Admin. R. at 21-26; Negative Determination, 67 Fed.Reg. at 35,142. On August 26, 2002, the Clerk of the Court of the United States Court of International Trade received and deemed filed a letter written by Ms. Fail, on behalf of the Former Employees of Sonoco, requesting an appeal of Labor's Negative Determination. See Def.'s Mem. Supp. Mot. Dismiss. ("Def.'s Mem.") at Exs. A & C. This appeal was filed one hundred and one days after Labor's decision was published in the Federal Register. Section 2395(a) of Title 19 of the United States Code requires that an action challenging a determination made by Labor be commenced within sixty days after notice of such determination is rendered. See 19 U.S.C. § 2395(a) (emphasis added). The sixty-day period begins to run when the final determination is published in the Federal Register. See 29 C.F.R. § 90.19(a) (2002); Kelley v. Sec'y, U.S. Dep't of Labor, 812 F.2d 1378, 1380 (Fed.Cir.1987) (stating that "where the question is the calculation of the time limitations placed on the consent of the United States to suit, a court may not ... take a liberal view of that jurisdictional requirement and set a different rule for pro se litigants").

II. Contentions of the Parties

Although the procedural facts are uncontested, plaintiffs argue that the Court should consider additional relevant facts and apply the doctrine of equitable tolling. See Pls.' Mem. Resp. Def.'s Mot. Dismiss ("Pls.' Resp.") at 1. Such additional facts include the following:

1. In January of 2002[,] Sonoco management announce[d] in a meeting with employees that it will close its manufacturing plant in Lincolnton, North Carolina.

2. In January or February 2002, Sonoco, without informing the affected workers of any details, explains to the workers that it intends to file a NAFTA-TAA petition.... [Subsequently, Sonoco files such a petition.] According to Ms. Fail, the workers are never informed by Sonoco (or any other person) that the TAA petition was filed....

. . . . .

[3.] During spring and summer of 2002, certain of the displaced Sonoco workers, including Dorothy Fail, understand that Sonoco has filed a petition on their behalf concerning special unemployment and retraining benefits. Dorothy Fail makes regular visits to the local state employment office in order to, among other things, demonstrate that she is still actively looking for work (in order to continue receiving ordinary state unemployment benefits) and to explore job opportunities. While she is at this office, Ms. Fail regularly inquires whether there is any information concerning the petition filed by Sonoco. Ms. Fail also regularly makes inquiries of other displaced Sonoco workers. Ms. Fail's efforts to keep informed of any developments result in no information.

[4.] In August of 2002, Dorothy Fail, while at the local state employment office, is told that the office has received news that the petition filed by Sonoco was denied by Labor.

[5.] Dorothy Fail, along with certain other former employees of Sonoco, immediately begin to research their rights and obligations. Upon discovering that a negative determination can be appealed to this Court, three former Sonoco employees, [including] Dorothy Fail ... complete a TAA petition, and Dorothy Fail signs and sends with the petition a cover letter to this Court in which she requests "appeal seeking judicial review of [Labor's] [N]egative [D]etermination ...." The letter [to the Court] is sent within one or two weeks of Dorothy Fail being informed that the NAFTA-TAA petition for the former Sonoco employees has been denied.

Pls.' Resp. at 2-4 (emphasis added). According to plaintiffs, the Court should exercise its ability "to judiciously and fairly employ the doctrine of equitable tolling" in order to save this action from dismissal due to untimeliness. Id. at 5.

Plaintiffs analogize the facts of this case to those established in Former Employees of Quality Fabricating, Inc. v. United States Sec'y of Labor, 259 F.Supp.2d 1282 1283-84 (CIT 2003), and argue that equitable tolling is appropriate in this case since "no worker or worker representative was aware of any of the details concerning the petition" filed on their behalf by Sonoco. Pls.' Resp. at 6-7. Specifically, plaintiffs contend that Sonoco never provided them with notice regarding Labor's Negative Determination, and that Ms. Fail relied on inadequate information from local, state employment officials. See id. at 7. According to plaintiffs, these officials, who are essentially "partners with Labor in administering the NAFTA-TAA program[,] never explained the publication rule to Dorothy Fail, despite her repeated requests for information concerning the petition." Id. Instead, Ms. Fail maintains that although state officials repeatedly told her that they would inform her of Labor's decision regarding her petition "during one of her regular visits to the employment office," she was actually notified eighty days "after publication of the decision in the Federal Register." Id. "[O]nce Ms. Fail learned of the negative determination, she and certain other former Sonoco workers immediately began their own research to understand and exercise their right to judicial review of Labor's decision." Id. Since the letter initiating this appeal was filed with the Court within sixty days from the date Ms. Fail deems she received notice of Labor's Negative Determination, plaintiffs argue that they exercised the necessary due diligence required to apply the doctrine of equitable tolling. See id. at 7-8.

Labor contends that plaintiffs have not met their...