Former Employees of Siemens Info. Comm. v. Herman

• Decision Date: 01 November 2000
• Docket Number: Court No. 99-11-00681.,Slip Op. 00-140.
• Parties: FORMER EMPLOYEES OF SIEMENS INFORMATION COMMUNICATION NETWORKS, INC., Plaintiffs, v. Alexis HERMAN, Secretary, United States Department of Labor, Defendant.
• Court: U.S. Court of International Trade

120 F.Supp.2d 1107

FORMER EMPLOYEES OF SIEMENS INFORMATION COMMUNICATION NETWORKS, INC., Plaintiffs, v. Alexis HERMAN, Secretary, United States Department of Labor, Defendant.

Slip Op. 00-140.

Court No. 99-11-00681.

United States Court of International Trade.

November 1, 2000.

Neville Peterson & Williams (John M. Peterson, Maria E. Celis, and Curtis W. Knauss), New York, NY, for Plaintiffs.

David W. Ogden, Assistant Attorney General of the United States; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Velta A. Melnbrencis, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Franklin E. White, Jr.), Washington, DC, for Defendant.

OPINION

EATON, Judge.

Plaintiffs seek judicial review of the Secretary of Labor's ("Secretary") denial of their petition for certification of eligibility to apply for trade adjustment assistance under the Trade Act of 1974, 19 U.S.C. §§ 2271-2322, 2395 (1994). The United States ("Government") on behalf of the Secretary moves pursuant to USCIT R. 12(b)(1) to dismiss the complaint for lack of subject matter jurisdiction. The Government asserts that Plaintiffs commenced this action beyond the sixty-day statutory time period within which an aggrieved party may file suit under 28 U.S.C. § 1581(d)(1) (1994) to contest a final determination of the Secretary with respect to the eligibility of workers for trade adjustment assistance. Plaintiffs claim that jurisdiction is properly invoked because the sixty-day statutory time period for commencing an action under 28 U.S.C. § 1581(d)(1) is subject to equitable tolling and should, under the facts, be equitably tolled. The Court for the reasons set forth below grants the Government's motion to dismiss.

STANDARD

Because they seek to invoke the court's jurisdiction, Plaintiffs have the burden of proving its existence by a preponderance of the evidence. See McNutt v. Gen., Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Reynolds v. Army and Air Force Exch. Serv., 846 F.2d 746, 748 (Fed.Cir. 1988). Where the movant, in this case, the Government, presents a factual attack on the court's jurisdiction by alleging that an action is time barred, see Takashima U.S.A., Inc. v. United States, 19 CIT 673, 677, 886 F.Supp. 858, 861 (1995), the court is "free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977); see Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583-84 (Fed.Cir. 1993); see also Gibbs v. Buck, 307 U.S. 66, 71-72, 59 S.Ct. 725, 83 L.Ed. 1111 (1939) ("As there is no statutory direction for procedure upon an issue of jurisdiction, the mode of its determination is left to the trial court."). Accordingly, this Court, pursuant to an evidentiary hearing held on July 26, 2000, makes the following findings of fact.

FACTS

On March 18, 1999, Dorothy Sharp, Donna Williams, and Roger Barnes, on behalf of 294 workers at the Cherry Hill, New Jersey, production facility of Siemens Information Communication Networks, Inc. ("Siemens"), filed a petition for certification of eligibility to apply for trade adjustment assistance. (Pls.' Ex. 1.) The petition was filed in anticipation of layoffs that were scheduled to begin on May 28, 1999, resulting from the impending shutdown of the Cherry Hill facility.

Following an investigation conducted by the Department of Labor's Office of Trade Adjustment Assistance ("OTAA"),¹ Grant D. Beale, the OTAA Acting Director and certifying officer,² issued a negative determination thus denying the Siemens workers' petition for certification. See Notice of Determinations Regarding Eligibility to Apply for Worker Adjustment Assistance and NAFTA Transitional Adjustment Assistance, 64 Fed.Reg. 27,810 (May 21, 1999).³ Mr. Beale notified the petitioners of the Secretary's negative determination by individual letters dated May 3, 1999. (Pls.' Ex. 2.) Each letter further informed the recipient that the workers had 30 days from the date of the publication of the determination in the Federal Register in which to request administrative reconsideration.

Following the instructions in this letter, Ms. Sharp and Ms. Williams promptly wrote to the Secretary requesting reconsideration of the negative determination. (Pls.' Ex. 4.) Petitioners' request for reconsideration was denied and, by letter dated July 27, 1999 ("July 27 letter"), Mr. Beale notified the petitioners of the denial and of the availability of judicial review. The July 27 letter states in relevant part:

The Department of Labor has recently issued a notice of negative determination regarding application for reconsideration for the above referenced firm. Enclosed is a copy of the notice which will be published shortly in the Federal Register.

You have sixty days from the date this decision is published in the Federal Register to file for judicial review of the Department's negative determination. Petitions for judicial review must be filed with the U.S. Court of International Trade, 1 Federal Plaza, New York, New York 10007. Further information regarding procedures or instituting an action in the U.S. Court of International Trade may be obtained from the Office of the Clerk at the above address. The phone number for the clerk of the Court is (212) 264-7090.

There are other training and reemployment services available to dislocated workers through the Economic Dislocation and Worker Adjustment Assistance (EDWAA) program under Title III of the Job Training Partnership Act (JTPA). The workers are encouraged to inquire about their State's plans for providing job training, job search, relocation and other reemployment services to unemployed and dislocated workers under this program.

For further information on assistance under Title III of the JTPA, you should contact Mr. Thomas Drabik, Director, Rapid Response Team, Labor Management Committee, New Jersey Department of Labor, CN 058, Trenton, NJ 08625, telephone 1-800-343-3919.

If we may be of further assistance you may call this office at (202) 219-4820.

(Pls.' Ex. 5.) Notice of the negative determination regarding the Siemens workers' application for reconsideration was published in the Federal Register on August 11, 1999. See Siemens ICN a/k/a Siemens Information Communications Networks, Inc., Cherry Hill, NJ; Notice of Negative Determination Regarding Application for Reconsideration, 64 Fed.Reg. 43,728 (August 11, 1999).

Plaintiffs, however, made no immediate attempt to contact this court. Instead, according to the testimony of Mr. Lawrence Scott, one of the former Siemens employees, they "decided that [they] would go directly to Mr. Beale." (Transcript of July 26, 2000 evidentiary hearing ("Tr.") 29:5-6.) Consequently, Ms. Sharp and Mr. Scott called Mr. Beale in early September 1999. Mr. Scott told Mr. Beale during this conversation that he possessed important information regarding the Siemens denial, and that he wished to present it to him. Unable to recall the exact status of the Siemens case, and without attempting to ascertain the status of the callers' petition, Mr. Beale stated in reply that "[t]his [was] not a[n] unlimited denial process" (Tr. 13:24—25), but did not discourage Mr. Scott from submitting the additional documentation. Mr. Scott and Ms. Sharp ended the call without making any inquiries with respect to the July 27 letter, or to the sixty-day time limit for seeking judicial review mentioned therein.

On or about September 27, 1999, Mr. Scott attempted to fax to Mr. Beale a letter and other materials which had been compiled for his review. (Pls.' Ex. 8.) On September 29, 1999, upon discovering that the documents had been faxed to a wrong number, Mr. Scott and Ms. Sharp resubmitted them to Mr. Beale via a facsimile. Some days later, copies of these documents were routed to Mr. Beale, who took note of their arrival but did not review them. The documents were assigned to a program analyst for response.

In the interim, Mr. Scott wrote letters to several New Jersey legislators and government officials, requesting their assistance concerning what he described as the Siemens workers' "final appeal to the DOL." (Letter from Lawrence Scott to the Honorable Christine Todd Whitman, Governor of New Jersey, of 10/1/99, Pls.' Ex. 9.) On October 5, 1999, Mr. Scott forwarded copies of this correspondence to Mr. Beale.

On October 25, 1999, Edward A. Tomchick, the OTAA Director, sent a letter to Mr. Scott informing him that the Secretary could not grant the Siemens workers' request for "another appeal." (Pls.' Ex. 10.) Mr. Tomchick's letter provided, in part:

We cannot comply with your request. On July 19, 1999, the [Secretary] issued a notice of negative determination regarding application for reconsideration applicable to workers of the subject firm. Included with your [faxed] enclosures [to Mr. Beale] was the [Secretary's] July 27 letter to Ms. Donna Williams notifying her that for the purposes of judicial review, the [Secretary's] determination was final and further appeal would have to be pursued with the United States Court of International Trade (USCIT). Ms. Williams was provided information on filing deadlines and how to contact the USCIT.

(Id.).

After reading this letter, Mr. Scott, proceeding pro se and on behalf of the Siemens workers, sought judicial review by letter to this court dated November 3, 1999. The Clerk of the Court deemed this letter a summons and complaint filed on November 4, 1999, the date of receipt. Thereafter, the Government moved to dismiss the complaint for lack of subject matter jurisdiction, claiming that Plaintiffs had failed to commence the instant action within the statutorily-prescribed sixty-day period.

On January 28, 2000, Mr. Scott made an application for appointment of counsel, which the Court granted. Thereafter, ...