Former Employees of Quality Fabricating, Inc. v. United States Dep't of Labor

Slip Op. 04-48

UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
FORMER EMPLOYEES OF :
QUALITY FABRICATING, INC., :
:
Plaintiffs, :
: Before: WALLACH, Judge
: Court No.: 02-00522
v. :
:
UNITED STATES DEP’T OF LABOR, :
:
Defendant. :
____________________________________:

[Defendant’s Motion to Dismiss is denied.]

Decided: May 11, 2004

Collier Shannon Scott, (Adam Gordon and John Brew), for Plaintiffs.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Patricia M. McCarthy,
Assistant Director; Stephen Tosini, Trial Attorney, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, for Defendant.

WALLACH, Judge:

OPINION

I
Introduction

Plaintiffs, Former Employees of Quality Fabricating, Inc., brought this action seeking

judicial review of the United States Department of Labor’s (“Labor”) decision denying their

eligibility for trade adjustment assistance (“TAA”) benefits under Section 223 of the Trade Act

of 1974. 19 U.S.C. § 2273 (2000). Defendant filed a Motion to Dismiss (“Defendant’s Motion”).

1
On April 13, 2004, the court heard oral argument on Defendant’s Motion. Defendant argues that

Plaintiffs have failed to state a claim upon which relief could be granted pursuant to USCIT R.

12(b). For the foregoing reasons, Defendant’s Motion is denied.

II
Background

On June 28, 2001, Plaintiffs filed a petition seeking North American Free Trade

Agreement Transition Adjustment Assistance (“NAFTA TAA”) benefits in accordance with 19

U.S.C. § 2331 (1999).1 Labor registered the petition on July 5, 2001, and designated it Petition

#5051. On May 17, 2001, Labor denied Plaintiffs’ petition for certification of eligibility to

receive trade adjustment assistance. See Notice of Determinations Regarding Eligibility To

Apply for Worker Adjustment Assistance and NAFTA Transitional Adjustment Assistance, 67

Fed. Reg. 35,140, 35,142 (May 17, 2002). Plaintiffs seek judicial review of Labor’s decision

denying their eligibility for “TAA” benefits.

Both parties have filed a number of motions in this matter. On July 1, 2003, Plaintiffs

filed a 56.1 Motion for Judgment on the Agency Record. Defendant did not file a response to

this motion. Subsequently, on August 1, 2003, Defendant filed a Motion for Voluntary Remand

in order to “conduct a further investigation and to make a determination as to whether the

petitioners are eligible for certification for worker adjustment assistance benefits.” Defendant’s

Motion For Voluntary Remand at 1. Plaintiffs opposed the voluntary remand and on August 11,

1
On August 6, 2002, 19 U.S.C. § 2331 was repealed by Pub. L. 107-210, Div. A, Title I,
Subtitle A, § 123(a), 116 Stat. 933, 944 (2002). Congress consolidated the NAFTA TAA and the
Trade Act of 1974 into the Trade Act of 2002. See Former Employees of Oxford Auto. U.A.W.
Local 2088 v. United States, Slip Op. 2003-129, 2003 Ct. Intl. Trade LEXIS 128 (Oct. 2, 2003).
The repeal does not impact Plaintiffs because the determination regarding their eligibility
occurred prior to the effective date of the repeal.

2
2003, filed an Opposition to the Motion (“Plaintiff’s Opposition to Voluntary Remand”). On

August 22, 2003, Defendant submitted a Reply in Support of Its Motion for Voluntary Remand

(“Defendant’s Reply”) to the court.

As a result of the variance among the issues proposed by the parties in their briefs, on

August 27, 2003, the court ordered supplemental briefing to ascertain the parties’ precise claims.

Thereafter, on August 28, 2003, Plaintiff filed a Motion to Strike Defendant’s Reply claiming

that a reply was not permitted under the rules of this court and that the Defendant had failed to

ask for leave to file its Reply brief. The court scheduled oral argument on these three motions for

October 30, 2003. Before oral argument was held, however, Defendant filed its Motion to

Dismiss.2

III
Jurisdiction

Defendant claims that this court does not have jurisdiction to entertain Plaintiffs’ claims.

Defendant’s Supplemental Brief in Support of its Motion for Voluntary Remand at 3

(“Defendant’s Supplemental Brief”); Defendant’s Motion at 7. Once jurisdiction is challenged,

the Plaintiff must prove that jurisdiction before this court is proper. United States v. Biehl & Co.,

3 CIT 158, 160 (1982); Hilsea Inv. v. Brown, 18 CIT 1068, 1070 (1994); see also McNutt v.

Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 59 S. Ct. 780, 80 L. Ed 1135 (1936). A

“mere recitation of a basis for jurisdiction, by either a party or a court, cannot be controlling:

2
In their briefs regarding the Motion to Dismiss, both parties reference portions of their
other pending motions as well as their supplemental briefs to bolster and explain their arguments
regarding Defendant’s Motion to Dismiss. See Defendant’s Motion to Dismiss at 4-5; see also
Plaintiff’s Opposition to Defendant’s Motion to Dismiss at 7 n. 2 (“Plaintiff’s Opposition”).
Accordingly, the court considers the relevant portions of all pending motions and briefs in
reaching this decision.

3
federal courts are of limited jurisdiction, and may not alter the scope of either their own or

another courts’ statutory mandate.” See Williams v. Sec’y of Navy, 787 F.2d 552, 557 (Fed. Cir.

1986). Moreover, this court must also independently assess the jurisdictional basis for cases

before it. See Ad Hoc Comm. v. United States, 22 CIT 902, 906 (1998).

The Court Has Jurisdiction Under 28 U.S.C. § 1581(d) to Entertain An Appeal Challenging
Labor’s Secondarily-Affected Worker Groups Benefit Determination

Defendant argues that secondarily-affected worker group benefits, referenced in the North

American Free Trade Agreement Act’s Statement of Administrative Action (“NAFTA SAA”),

are not part of the Trade Act of 1974. See NAFTA SAA, H.R. Doc. No. 103-159, vol. 1, at 450

(1993). Defendant claims that “Congress only granted this Court limited jurisdiction to review

only matters that relate to North American Free Trade Agreement Transitional Adjustment

Assistance (“NAFTA-TAA”) benefits.” Defendant’s Brief in Reply to Plaintiffs’ Opposition to

Defendant’s Motion to Dismiss at 3 (“Defendant’s Reply”). Thus, it says that this court does not

have jurisdiction over appeals regarding Labor’s administration of its secondarily-affected

worker group determinations.3

Chapter 2 of Title II of the Trade Act of 1974 established benefits, called trade adjustment

assistance, for primarily affected worker groups. Trade Act of 1974, P.L. No. 93-618, 88 Stat.

1978, 2019-2020 (1975) (codified at 19 U.S.C. §§ 2271-2275 (1999)). These benefits include

income support payments, job search and relocation allowances, and career services. See Former

Employees of Chevron Prods. Co. v. United States, 298 F. Supp. 2d 1338, 1340 (CIT 2003).

Pursuant to 19 U.S.C. § 2273(a), certification of eligibility determinations by the Secretary of

3
Defendant did not indicate in its brief where jurisdiction to determine such claims would
be proper.

4
Labor must be made

as soon as possible after the date on which a petition is filed
under section 221 . . . the Secretary shall determine whether the petitioning group
meets the requirements of section 222 and shall issue a certification of eligibility
to apply for assistance under this subpart covering workers in any group which
meets such requirements.

Once this determination is made, Labor is required to publish it in the Federal Register along

with the rationale for its decision. 19 U.S.C. § 2273(c). Pursuant to 28 U.S.C. § 1581(d)(1), this

court has exclusive jurisdiction over any civil action commenced to review “any final

determination of the Secretary of Labor under section 223 of the Trade Act of 1974 with respect

to the eligibility of workers for adjustment assistance under such Act.” See 19 U.S.C. § 2273

(1999).

On December 8, 1993, Congress approved NAFTA and implemented it through the

NAFTA Implementation Act of 1993, P.L. 103-182, Section 101(a)(b), 107 Stat. 2057 (1993)

(“NAFTA Implementation Act”). See Bestfoods v. United States, 165 F.3d 1371, 1374 (Fed. Cir.

1999). As well as approving NAFTA, Congress approved the NAFTA SAA. NAFTA, H.R. Doc.

No. 103-159, vol. 1, at 10 (1993); see NAFTA SAA, H.R. Doc. No. 103-159, vol. 1, at 450

(1993); see Bestfoods, 165 F.3d at 1374; Plaintiffs’ Motion for Judgment on the Agency Record,

Appendix 3; see also 19 U.S.C. § 3311(a)(2). The SAA described and the NAFTA

Implementation Act authorized the promulgation of regulations “as necessary or appropriate to

implement immediately applicable U.S. obligations under the NAFTA,” NAFTA SAA, H.R.

Doc. No. 103-159, vol. 1, at 463, as well as those regulations that were necessary or appropriate

to carry out the actions proposed in the SAA. 19 U.S.C. § 3314(b); see Bestfoods v. United

States, 165 F.3d at 1374. The services provided pursuant to the NAFTA Implementation Act,

5
including those referenced by the SAA, are called transitional adjustment assistance.4 See

NAFTA Implementation Act P.L 103-182, 107 Stat. 2057, 2554. The NAFTA SAA explained

that one “comprehensive program” was to afford affected workers with the necessary assistance.

NAFTA SAA at 672. In order to provide this support, the Administration proposed a transitional

worker assistance program having two components. The first component provided benefits to

primarily affected workers; the second, to secondarily-affected workers. The NAFTA SAA

explained that under the second component

[W]orkers in firms that are indirectly affected by the NAFTA would be eligible to
receive assistance pursuant to the national grant program administered by the
Secretary of Labor under Part B of Title III of the Job Training Partnership Act.
The Secretary will reserve funds for this purpose. These firms will include
suppliers of the firms that are directly affected by imports from Mexico or Canada
or shifts in production to those countries. Secondary firms will also include
“upstream” producers, such as direct processors, that assemble or finish products
made by directly-affected firms . . . .

Workers in these firms will receive the same rapid response, basic
readjustment and employment services, job search and relocation assistance,
training and income support available to workers in directly affected firms. In
addition, income support would be available under this component to workers
who are covered by a petition certified under the first component of the program
but who are not eligible for income support under that component because they
are not eligible for unemployment compensation, do not meet the tenure
requirement, or were unable to meet the enrollment deadline because the first
available enrollment date was past the deadline or a course was abruptly canceled.

Id. at 674. (emphasis added).

Pursuant to 19 U.S.C. § 2331(c) (2000), workers who file a petition for adjustment

assistance and meet the eligibility requirements are issued a certification of eligibility to apply for

4
There is no significant difference between transitional adjustment assistance provided
for pursuant to NAFTA and trade adjustment assistance provided pursuant to the Trade Act of
1974. See Former Employees of Chevron Prods., 298 F. Supp. 2d at 1340.

6
assistance by Labor. Those denied certification of eligibility may appeal Labor’s denial of

NAFTA TAA benefits, pursuant to 19 U.S.C. § 2395(a) (2000), which provides that:

A worker . . . aggrieved by a final determination of the Secretary of Labor under
section 223 of this title, a firm or its representative or any other interested
domestic party aggrieved by a final determination of the Secretary of Commerce
under section 251 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.

The NAFTA SAA explained that Labor was assigned the responsibility for administering

the program and determining whether a group of workers is secondarily-affected. Workers from

indirectly affected firms were then eligible to receive benefits and services delivered through the

dislocated worker program under the Job Training Partnership Act (“JTPA”).5 The secondarily-

affected worker eligibility determination made under NAFTA is separate from the benefits

provided by Title III of the JTPA. See NAFTA SAA at 672, 674; Plaintiff’s Response to

Defendant’s September 9, 2003 Submission (“Plaintiff’s Response”) at 4; see also Plaintiff’s

Appendix to its Memorandum of Law Accompanying Plaintiff’s Motion for Judgment Upon the

Agency Record (“Plaintiff’s Appendix”) at 3. The NAFTA SAA explains that “the transitional

program will draw on the best aspects of existing programs.” NAFTA SAA at 672.

The JTPA was fundamentally different from the Trade Act of 1974. The provisions

relating to the JTPA did not deal with any of the substantive aspects for requirements relating to

petitions, worker eligibility, or notice. Rather, the JTPA focused on funding benefits once

5
The JTPA, 29 U.S.C. §§ 1662 et seq. (1994 & Supp. IV 1998), was repealed effective
July 1, 2000, by the Workforce Investment Act of 1998 (“WIA”), Pub. L. No. 105-220, §
199(b)(2), 112 Stat. 1059-60. The repeal is not relevant to the court’s decision.

7
eligibility is determined.6 This is in direct contrast to the Trade Act of 1974, which explains the

substantive analysis that Labor is required to make when certifying secondarily-affected workers.

See Plaintiff’s Response at 5-6, Exhibits 2A. Title 19 contains specific substantive elements

such as petition requirements, pursuant to 19 U.S.C. § 2271; group eligibility requirements,

pursuant to 19 U.S.C. § 2272; determinations by the Secretary of Labor, pursuant to 19 U.S.C. §

2273; and program benefits, pursuant to 19 U.S.C. §§ 2291. See Plaintiff’s Response at 6,

Exhibits 2A, 2B. There are no references to the source of funding for secondarily-affected

workers within these provisions, and they cannot be construed as containing a source of funding.

As noted above, the JTPA did not provide information regarding petition requirements,

certification, notice and eligibility for benefits for secondarily-affected workers. The JTPA,

accordingly, could not be construed as the source for an entitlement of benefits.

6
The 1988 provisions of Part B of the JTPA contain four sections addressing Federal
responsibilities related to Employment and Training Assistance for Dislocated Workers. The
sections detail:

(1) the use of funds if state authorities fail to submit a required plan concerning state
delivery of services pursuant to 29 U.S.C. § 1662;

(2) distribution of funds by the Secretary of Labor to the states, state performance
monitoring, information gathering and technical assistance, pursuant to 29 U.S.C.
§ 1662a;

(3) circumstances and activities for use of funds, use of funds in emergencies, staff
training, and technical assistance, pursuant to 29 U.S.C. § 1662b; and

(4) use of the funds to establish demonstration programs, pursuant to 29 U.S.C. §
1662c.

See Plaintiff’s Response at 5, Exhibit 1A. The 1993 revisions to the JTPA added three
provisions relating to funding of defense-related adjustment programs and transition assistance
related to worker dislocation resulting from the Clean Air Act. See 29 U.S.C. §§ 1662d, 1662d-1
& 1662e (1993); Plaintiff’s Response at 5, Exhibit 1B.

8
 The NAFTA SAA explains the substantive requirements for benefit eligibility, and

lacking any statutory authority or legislative history to the contrary, it can only be viewed as the

source from which procedural requirements regarding secondarily-affected worker transitional

adjustment assistance benefits emanate. This view is supported by the NAFTA implementing

statute, 19 U.S.C. § 3314(b), which requires that those regulations “necessary or appropriate to

carry out the actions proposed in the statement of administrative action,” are authorized. Statutes

that relate to the same matter, in pari materia, should be read to “work harmoniously together.”

Ambassador Div. of Florsheim Shoe v. United States, 748 F.2d 1560, 1565 (Fed. Cir. 1984).

Both the entitlement and the funding provision must work in concert to effectuate each other.

The court must consider statutes and legislation as a whole, not in a vacuum. To construe the

source of the benefits conferred, the SAA, as not affecting the procedures supplying the benefit,

in the absence of legislative history to the contrary, offends traditional cannons of legislative and

statutory interpretation.7

The TAA and NAFTA compose part of the trade related purpose and jurisdiction of this

court. Allowing secondarily-affected worker benefits claims to be litigated in other district

courts would defeat the Congress’ intent and jurisdictional grant. Therefore, because the

secondarily-affected workers claims were developed as a direct result of job losses attributed to

NAFTA, and this court has jurisdiction to review claims relating to denial of benefits for claims

of trade related job loss, it would be illogical, in the absence of contrary authority, to hold that

7
Moreover, the subsequent legislation by Congress in the Trade Adjustment Assistance
Reform Act of 2002 (“Reform Act”), which specifically amended the Trade Act of 1974 to
include secondarily-affected worker groups supports the court’s analysis. See 19 U.S.C. §
2272(b).

9
only some denial of benefits are reviewable by this court and others are not.

The Court of International Trade “operates within the precise and narrow jurisdictional

limits” granted by Congress. Biehl, 3 CIT at 162. Nonetheless, the exclusive jurisdiction of this

court and the deference Congress and other courts have given to the CIT’s expertise in trade-

related matters lends support for the conclusion that jurisdiction over secondarily-affected worker

benefits is most appropriately reviewed here. See e.g., Int’l Trading Co. v. United States, 281

F.3d 1268, 1274 (Fed. Cir. 2002) (explaining that this court “has expertise in addressing

antidumping issues and deals on a daily basis with the practical aspects of trade practice.”). In

cases involving Customs and trade related matters, other circuits have dismissed suits that

impinged upon the jurisdiction of this court.8 See United States v. Universal Fruits and

Vegetables Corp., 2004 U.S. App. LEXIS 4991 (Mar. 17, 2004) (stating that the Ninth Circuit

has previously held that “the jurisdiction of the Customs Court [now the Court of International

Trade] is exclusive. Even when other, broadly-worded statutes seem to confer concurrent

jurisdiction on the district courts, the exclusivity of Customs Court jurisdiction reflects a policy

of paramount importance which overrides the literal effect of [other statutes].”) (internal citations

8
In Cornet Stores v. Morton, 632 F.2d 96, 98-99 (9th Cir. 1980), a presidential
proclamation required to plaintiffs to pay an additional duty on merchandise they imported into
the United States. The plaintiffs brought suit in a district court to recover those import
surcharges. The district court dismissed the case and held that the matter was within the
exclusive jurisdiction of the Customs Court, a decision which the appellate court affirmed. Id.
Congress intended to ensure uniform administration of the customs laws and other statutes, see
Jerlian Watch Co. v. United States Department of Commerce, 597 F.2d 687, 691 (9th Cir. 1979),
and therefore, the appellate court held that the district court properly dismissed the case. Cornet
Stores, 632 F.2d at 98-99. “Customs Court jurisdiction is not defeated because a statute or
regulation serves other ends in addition to recognized customs purposes, so long as there exists ‘a
substantial relation to traditional customs purposes.’” Jerlian Watch Co., 597 F.2d at 691 (9th
Cir. 1979).

10
omitted).

Finally, Labor’s actions confirm that it acted with the understanding that secondarily-

affected worker benefits are derived from both the NAFTA TAA and the NAFTA SAA.

Plaintiffs filed one petition to apply for both primary and secondary benefits, Administrative

Record at 2, and Labor conducted one investigation involving the same facts identified in the

single petition that was filed and that is subject to this appeal. Labor published one notice of

initiation concerning the petition. See Administrative Record at 4-5. Both the primary and

secondary certification claims before the court involve the same injured parties and the same

governmental agency reviewing the same record in this matter. One unified record, covering the

agency’s actions related to both primary and secondary certification, was certified published

regarding its actions and the subject Petition. Labor’s interorganizational materials require

appeals to be taken to the CIT. Finally, Labor’s published notices related to secondary benefits

specifically refer to the NAFTA TAA and the NAFTA SAA, which amended section 223 of the

Trade Act of 1974, as the basis for granting eligibility for such benefits. Thus, Labor’s actions

support Plaintiffs’ contention that the agency acted pursuant to the requirements of NAFTA and

the Trade Act of 1974, and its certification to this court further indicates its belief that this court

has jurisdiction over the suit. Furthermore, there is no indication in the legislative history

surrounding the NAFTA Implementation Act that Congress or the Administration intended to

deny this court jurisdiction over secondary claims, as is here proposed by the Government.9

9
This conclusion was confirmed by the Reform Act which amended assistance for
workers by providing a more direct statutory basis for secondary claims under the NAFTA-TAA
SAA, see 19 U.S.C. § 2272(b), and exclusive jurisdiction over appeals relating to both primary
and secondary claims in the CIT.

11
 Read together, the NAFTA Implementation Act and NAFTA SAA permit plaintiffs to

bring their suit challenging Labor’s denial of secondary benefit eligibility. Thus, pursuant to 28

U.S.C. § 1581(d)(1), this Court has jurisdiction over Plaintiffs’ claims that Labor’s failure to

provide notice of the Affirmative Secondary Determination to affected workers was not in

accordance with law.10

10
In addition to the specific grant of jurisdiction over a party’s challenge to a final
determination by Labor arising under 19 U.S.C. § 2273, the court also has jurisdiction, pursuant
to its residual jurisdiction 28 U.S.C. § 1581(i)(4), over actions pertaining to the administration
and enforcement of that provision. Section 1581(i) grants jurisdiction in instances when no other
subsection is available or provides inadequate remedy. See Norcal/Crosetti Foods, Inc. v. United
States, 963 F.2d 356, 359 (Fed. Cir. 1992). It provides that

the Court of International Trade shall have exclusive jurisdiction of any civil
action commenced against the United States, its agencies, or its officers, that
arises out of any law of the United States providing for

(1) revenue from imports or tonnage;
(2) tariffs, duties, fees, or other taxes on the importation of
merchandise for reasons other than the raising of revenue;
(3) embargoes or other quantitative restrictions on the importation of
merchandise for reasons other than the protection of the public
health or safety; or
(4) administration and enforcement with respect to the matters referred
to in paragraphs (1)-(3) of this subsection and subsections (a)-(h)
of this section.

This subsection shall not confer jurisdiction over an antidumping or
countervailing duty determination which is reviewable either by the Court of
International Trade under section 516a(a) of the Tariff Act of 1930.

28 U.S.C. § 1581(i); see also Consol. Bearings Co. v. United States, 348 F.3d 997, 1001-02 (Fed.
Cir. 2003). Because the procedures for determining entitlement to secondary benefits under
NAFTA are derived from the SAA accompanying the NAFTA Implementation Act, any
procedural deficiencies must be considered under the court’s residual jurisdictional grant.
Therefore, this court has jurisdiction to review any final determinations of the Secretary
of Labor with respect to the eligibility of secondarily-affected workers for adjustment assistance
pursuant to 28 U.S.C. § 1581(d) and matters regarding administration and enforcement of its
determination regarding adjustment assistance to secondarily-affected workers pursuant to 28

12
U.S.C. § 1581(i)(4). See e.g., J.S. Stone, Inc. v. United States, 297 F. Supp. 2d 1333, 1340-41.
Plaintiffs also argued that the existence of an implied right of action concerning
secondarily-affected worker benefits arguably exists. See Plaintiff’s Opposition at 8, n.3. This
legal theory has not previously been presented to the court. In Cort v. Ash, 422 U.S. 66, 78, 95
S. Ct. 2080, 45 L. Ed. 2d 26 (1975), the Supreme Court reviewed the doctrine of implied right of
action and identified four criteria to be addressed when considering whether an implied right of
action exists:

First, is the plaintiff one of the class for whose especial benefit the statute was
enacted, that is, does the statute create a federal right in favor of the plaintiff?
Second, is there any indication of legislative intent, explicit or implicit, either to
create such a remedy or to deny one? Third, is it consistent with the underlying
purposes of the legislative scheme to imply such a remedy for the plaintiff? And
finally, is the cause of action one traditionally relegated to state law, in an area
basically the concern of the States, so that it would be inappropriate to infer a
cause of action based solely on federal law?

Id., 422 U.S. at 78 (internal quotation marks omitted).
The analysis described in Cort has since been focused to emphasize legislative intent.
See Suter v. Artist M., 503 U.S. 347, 364, 112 S. Ct. 1360, 118 L. Ed. 2d 1 (1992) (“The most
important inquiry here . . . is whether Congress intended to create the private remedy sought by
the plaintiffs.”). The Court subsequently held that an implied right of action may be inferred
from the “language of the statute, the statutory structure, or some other source . . . .” Northwest
Airlines v. Transp. Workers Union of America, AFL-CIO, 451 U.S. 77, 94, 101 S. Ct. 1571, 67
L. Ed. 2d 750 (1981); see also Thompson v. Thompson, 484 U.S. 174,179, 108 S. Ct. 513, 98 L.
Ed. 2d 512 (1988) (“The intent of Congress remains the ultimate issue, however, and ‘unless this
congressional intent can be inferred from the language of the statute, the statutory scheme, or
some other source, the essential predicate for implication of a private remedy simply does not
exist.’”).
Plaintiffs claim that the four criteria are met in this case. First, Plaintiffs claim that they
are of the class, dislocated workers, for whose benefit the relevant statutory provisions of the
Trade Act of 1974, related to the NAFTA transitional adjustment assistance and secondary
benefits, were enacted. Second, they claim that the Congressionally-approved NAFTA SAA
provides explicit indication of a legislative intent to create the remedy here at issue. They argue
that this is especially true because Congress approved the NAFTA SAA, and the NAFTA SAA
should be considered a significant and appropriate “other source” of legislative intent giving rise
to an implied right of action in this case. Third, Plaintiffs claim that finding an implied right of
action as to issues related to secondary worker group benefits is consistent with the underlying
purposes of the legislative scheme. Finally, they argue that the cause of action at issue is not one
traditionally relegated to state law in an area basically the concern of the states. Rather, it is an
area of express federal activity and action, in which the states act only and strictly as agents of
the federal agency administering the law at issue. The court will not reach this issue because it

13
 IV
Arguments

Defendant claims that, pursuant to USCIT R. 12(b)(5), the court must dismiss this action

because Plaintiffs have failed to state a claim upon which relief can be granted. Its claim that this

court lacks jurisdiction is resolved above. Defendant alternately claims that, assuming this court

possesses jurisdiction, no justiciable issue exists because Plaintiffs received the relief they

requested; thus, the case is rendered moot. Defendant also argues that Plaintiffs abandoned their

original claim when they opposed Defendant’s Motion for Voluntary Remand.

Plaintiffs claim that their Complaint and First Amended Complaint provide proper notice

of issues raised in this appeal of Labor’s negative determination and that this court has

jurisdiction over all claims raised.

V
Standard of Review

The court’s grant of a motion to dismiss is proper “where it appears beyond doubt that

plaintiff can prove no set of facts which would entitle him to relief.” Constant v. Advanced

Micro-Devices, Inc., 848 F.2d 1560, 1565 (Fed. Cir. 1988) (internal citation omitted). When

reviewing a motion to dismiss, the court examines a plaintiff’s complaint in order to determine

whether it sets forth facts sufficient to support a claim. See NEC Corp. v. United States, 20 CIT

1483, 1484 (1996). Plaintiffs must give “fair notice of what their claim is and the grounds upon

which it rests,” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), but need

not set out in detail the facts on which their claim is based. The court assumes “all well-pled

finds an express statutory grant of jurisdiction over Labor’s determination of secondarily-affected
worker group benefits.

14
factual allegations are true” and construes “all reasonable inferences in favor of the nonmovant.”

Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir. 1991).

Ultimately, it is not necessary that the specific relief requested by Plaintiffs be awarded,

rather the court need only ascertain that some relief is available. See Doe v. United States, 753

F.2d 1092, 1104 (D.C. Cir. 1985); Lada v. Wilkie, 250 F.2d 211, 215 (8th Cir. 1957). That

recovery is remote or unlikely is an insufficient reason to dismiss an action. See Bernheim v. Litt,

79 F.3d 318, 321 (2d Cir. 1996).

VI
Discussion

Plaintiffs claim that their Complaint properly provided notice of all claims that have been

raised and briefed. Plaintiffs argue that they pled in the alternative and that “Labor’s failure to

comprehend the nature of an alterative argument does not remove that argument from the Court’s

consideration, as and if necessary.” Plaintiff’s Opposition at 3. They argue that their First

Amended Complaint alleges relevant facts that provide sufficient notice to Labor that its

determination on the petition as a whole was being challenged.

The court’s consideration of a claim’s sufficiency is limited to the facts stated on the face

of the Complaint, documents appended to the Complaint and documents incorporated in the

Complaint by reference. See Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991).

This court’s rules as well as the Federal Rules of Civil Procedure require that in order for

Plaintiffs to make a legal claim in this court, they must suffer an actual injury and have exhausted

all of their administrative remedies. See Black’s Law Dictionary (7th ed. 1999) (defining

standing); USCIT R. 12(b); Fed. R. Civ. Pro. 12(b). On a motion to dismiss, whether on the

15
grounds of lack of jurisdiction over the subject matter, or for failure to state a cause of action,

Plaintiffs’ allegations are presumed true and their Complaint is liberally construed in their favor.

See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002).

Even when a court is afforded a statutory grant of jurisdiction, the parties must still meet the

requirements of standing, see 3V, Inc. v. United States, 23 CIT 1047, 1048 (1999), which are

determined by the court. See Whitmore v. Arkansas, 495 U.S. 149, 154, 110 S. Ct. 1717, 109 L.

Ed. 2d 135 (1990).

Plaintiffs’ administrative remedies were exhausted once Labor issued its final negative

determination denying their petition. 19 U.S.C. § 2395(a) (2000) (granting workers aggrieved by

a final determination of the Secretary of Labor under section 2273 or 2331(c) may, within sixty

days after notice of that determination commence a suit in the CIT for review of that

determination). Thus, what remains for the court to examine regarding Plaintiffs’ pleading is

whether they have an injury meant to be regulated by the statute at issue and an actual case and

controversy.11 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L.Ed. 2d

11
The Supreme Court in Lujan, stated that:

The irreducible constitutional minimum of standing contains three elements. First,
the plaintiff must have suffered an ‘injury in fact’ -- an invasion of a legally
protected interest which is (a) concrete and particularized, . . . and (b) ‘actual or
imminent, not ‘conjectural’ or ‘hypothetical’. . . . Second, there must be a causal
connection between the injury and the conduct complained of -- the injury has to
be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . the
result [of] the independent action of some third party not before the court’ . . . .
Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will
be ‘redressed by a favorable decision.’

Lujan, 504 U.S. at 560-61 (internal citations omitted). If a claim fails the Article III criteria
described in Lujan, the Court must dismiss the claim as non-justiciable, regardless of a statutory
grant of jurisdiction. See 3V, Inc., 23 CIT at 1048.

16
351 (1992).

A
Plaintiffs’ Complaint and First Amended Complaint Meet Notice Pleading Requirements
and USCIT R. 8

Ms. Margaret Miller, initiated this matter as a pro se litigant by letter to the court on July

16, 2002. Judicial review of Labor’s decision regarding eligibility for TAA benefits requires that

the parties, pursuant to USCIT R. 7, file a complaint and an answer. The Clerk of the Court for

the CIT deemed Ms. Miller’s letter as the filing of a complaint. On October 3, 2002, Defendant

filed its first motion to dismiss, which was denied. Former Employees of Quality Fabricating,

Inc. v. United States, 259 F. Supp. 2d. 1282 (CIT 2003). On October 9, 2002, Plaintiffs’ motion

to proceed in forma pauperis was granted and counsel appointed to serve generally on behalf of

Plaintiffs. On March 11, 2003, Plaintiffs filed their First Amended Complaint and on March 19,

2003, Defendant filed an Answer to that Amended Complaint.

Defendant states that “Plaintiffs’ opposition to [its] motion to dismiss offers no

explanation as to why this highly specific prayer for relief set forth in the motion for judgment

upon the administrative record, is wholly absent from the complaint.” Defendant’s Reply at 7. It

states that “Plaintiffs’ multiple, yet unexplained, references to ‘notice pleading’ . . . are

unavailing.” Id. (internal citations omitted).

Federal Rule of Civil Procedure 8(a), which provides for a simplified standard for

pleading, permits the court to dismiss a complaint “only if it is clear that no relief could be

granted under any set of facts that could be proved consistent with the allegations.” Hishon v.

King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984). USCIT R. 8(a) is the

17
same as the Federal Rule of Civil Procedure Rule 8(a).12 When the court appraises the

sufficiency of a complaint it follows the rule “that a complaint should not be dismissed for failure

to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78

S. Ct. 99, 102, 2 L. Ed. 2d 80, 84 (1957) (footnote omitted).

The Federal Rules of Civil Procedure govern the substantive requirements for a

Complaint. Pursuant to Rule 8, a pleading shall contain:

(1) a short and plain statement of the grounds upon which the court’s jurisdiction
depends, unless the court already has jurisdiction and the claim needs no new
grounds of jurisdiction to support it, (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for judgment for
the relief the pleader seeks. Relief in the alternative or of several different types
may be demanded.

Fed. R. Civ. Pro. 8.

In Conley, 355 U.S. at 47-48, the Supreme Court stated that the Federal Rules of Civil

Procedure “do not require a claimant to set out in detail the facts upon which he bases his claim.”

They only require a short and plain statement of the claim that gives the “defendant notice of

what the plaintiff’s claim is and the grounds upon which it rests.” Id. at 47 (footnote omitted).

Although the rules require that pleadings be concise and direct, they need not be internally

consistent. Federal Rule of Civil Procedure 8(e) states that:

12
Pursuant to USCIT R. 1, scope of the rules, “when a procedural question arises which is
not covered by these rules, the court may prescribe the procedure to be followed in any manner
not inconsistent with these rules. The court may refer for guidance to other courts. . . .” Thus,
when this court or an appellate court have not discussed previously one of the rules of this court,
which is identical to the Federal Rules of Civil Procedure, the court looks to the decisions of
other courts which have dealt with the civil rule at issue. See Zenith Radio v. United States, 823
F.2d 518, 521 (Fed. Cir. 1987).

18
 [a] party may set forth two or more statements of a claim or defense alternately or
hypothetically, either in one count or defense or in separate counts or defenses.
When two or more statements are made in the alternative and one of them if made
independently would be sufficient, the pleading is not made insufficient by the
insufficiency of one or more of the alternative statements. A party may also state
as many separate claims or defenses as the party has regardless of consistency and
whether based on legal, equitable, or maritime grounds. . . .

Plaintiffs are not required to plead a prima facie case in their Complaint. See

Swierkiewicz, 534 U.S. at 512. When a federal court reviews the sufficiency of a complaint its

task is limited; the court reviews the complaint in order to determine whether the claimant is

entitled to offer evidence to support its claims. See id..

Under notice pleading requirements, Plaintiffs’ Complaint must provide a short and plain

statement of the grounds upon which the court’s jurisdiction depends, which it does. Under a

subheading entitled Jurisdiction, Plaintiffs’ First Amended Complaint states that “[t]his Court

has jurisdiction over this appeal of the Defendant’s decision denying eligibility to apply for TAA

benefits under 28 U.S.C. § 1581(d)(1) (2000) and 19 U.S.C. § 2395(c) (2000).” Plaintiffs’ First

Amended Complaint at 2, ¶2. This is a sufficient statement of their case and gives Defendant

proper notice that its final determination is challenged.

To comply with the Federal Rules of Civil Procedure, Plaintiffs’ Complaint and First

Amended Complaint must show that they are entitled to relief. In Plaintiffs’ First Amended

Complaint, they alleged that “[o]n July 5, 2001, pursuant to Section 223 of the Trade Act of

1974, 19 U.S.C. § 2273, Plaintiffs filed a petition for TAA benefits with the Employment and

Training Administration of the United States Department of Labor (“DOL”), on behalf of certain

former employees of Quality Fabricating, Inc.” Id. at 2 ¶ 6. They also alleged that “[o]n or about

May 9, 2002, the DOL issued a negative determination regarding eligibility in response to the

19
above petition, denying the Plaintiffs eligibility for trade adjustment assistance under Section 223

of the Trade Act of 1974, 19 U.S.C. § 2273. The determination was published in the Federal

Register on May 17, 2001. See Notice of Determinations Regarding Eligibility To Apply for

Worker Adjustment Assistance and NAFTA Transitional Adjustment Assistance, 67 Fed. Reg.

35,140, 35,142 (May 17, 2002).” Id. at 3 ¶ 9. Plaintiffs claim that “[t]he DOL’s denial of

Plaintiffs’ petition for certification of eligibility to apply for TAA benefits was not supported by

substantial evidence and was not made in accordance with law,” Id. at 3, ¶13.

These allegations describe the filing of the petition, which sought both primary and

secondary certification, and publication of the notice that denied the petition as a whole. The

allegations are not limited to primary certification. Plaintiffs’ also claimed in their Complaint

that their “petition merits further investigation of the facts concerning the impact of imported

articles on the decline in sales or production in question and whether there, in fact, was a shift in

production of articles produced by Plaintiffs’ employer.” Id. at 3 ¶14. Additionally, in order to

meet the Federal Rules of Civil Procedure’s pleading requirements, Plaintiffs must make a

demand for judgment for the relief sought. The Rules, however, permit the pleader to demand

relief in the alternative or of several different types. Plaintiffs’ prayer for relief first asks the

court to “[examine] the administrative record created by the DOL to make the determination as to

whether the DOL properly conducted its investigation into the impact of foreign competition on

Quality Fabricating, Inc.” Id. at 4 ¶ 9. This requested form of relief requires an examination of

the record as a whole. “Because the record certified by Labor is a single record covering Labor’s

actions on the petition, i.e., all aspects of both the Negative Primary Certification and the

Affirmative Secondary Certification, the requested relief necessarily includes scrutiny of all

20
aspects of the documented actions, viz., all actions, (including whether proper notice was

provided) related to the Negative Primary Certification and the Affirmative Secondary

Determination.” Plaintiff’s Opposition at 5.

Plaintiffs’ Complaint requests that the court issue an order that either (i) overturns the

DOL’s decision and grants Plaintiffs’ application for TAA and NAFTA-TAA benefits; or (ii)

remands this case to the DOL for further investigation. This second requested form of relief

contemplates an alternative remedy sought by Plaintiffs in their Motion for Judgment on the

Agency record, seeking either a court ruling awarding benefits, or a remand for further

consideration.

Plaintiffs also seek attorney’s fees and such “additional and further relief to which

Plaintiffs may be entitled.” Plaintiffs’ First Amended Complaint at 4 ¶ d. Their last request for

relief contemplates a court order that Labor provide all forms of proper notice and the full scope

of undiluted benefits related to the Affirmative Secondary Determination – related to all claims

that properly may be before the Court. Thus, Plaintiffs’ request also contemplates the court

fashioning an appropriate remedy.

The Court of International Trade possesses “all the powers in law and equity of, or as

conferred by statute upon, a district court of the United States.” 28 U.S.C. § 1585 (2000); AK

Steel Corp. v. United States, 281 F. Supp. 2d 1318, 1323 (2003). When the court sits in equity it

is not limited solely to the language of the pleadings, especially when the pleadings contain

prayers in the alternative. See Chicago & E. I. R. Co. v. Illinois C. R. Co., 261 F. Supp. 289, 307

(N.D.Il. 1966). Instead the court may consider both the legal claims and the equitable claims

before it. See Wright & Miller, Federal Practice and Procedure: Civil 2d § 1283 at 532 (1990)

21
(quoting Federal Rule of Civil Procedure 8(e)).

Plaintiffs’ Complaint and First Amended Complaint were filed before the administrative

record was provided to them. The court construes the allegations in Plaintiffs’ First Amended

Complaint in the light most favorable to the Plaintiffs. Plaintiffs claim that they “prepared their

pleadings to be broad in scope, encompassing all possible claims arising from or related to the

published negative determination.” Plaintiffs’ Opposition at 6. They claim that their “allegations

address the Petition, without limitation, and the relief that is sought included ‘such additional and

further relief to which Plaintiffs may be entitled.’” Id. at 6. Thus, they argue that the issues

raised and briefed in the Motion to Dismiss fall within the purview of the allegations pled in the

First Amended Complaint.

Plaintiffs’ Complaint and First Amended Complaint are notice pleadings. The First

Amended Complaint gives notice that the Plaintiffs challenge the notice published by Labor in

the Federal Register on May 17, 2002. The notice published in the Federal Register states that

Labor has denied “the petition” filed by the Quality Fabricating, Inc. workers. Plaintiffs’ Motion

for Judgment on the Agency Record at 11-12. That petition sought certification either as a

primarily-affected worker group or as a secondarily-affected worker group. Notice of an appeal

of Labor’s published determination on the petition necessarily gives notice that claims

concerning both the determination concerning primary certification and secondary certification

may be raised and addressed.13

13
If Plaintiffs’ Complaints had failed to specify the allegations in a manner that provided
Defendant sufficient notice, it could have moved for a more definite statement under Rule 12(e)
before responding. Swierkiewicz, 534 U.S. at 514. Notice pleading focuses litigation on the
merits of a claim and “[rejects] the approach that pleading is a game of skill in which one misstep
by counsel may be decisive to the outcome and accept the principle that the purpose of pleading

22
 The court has not yet determined whether Plaintiffs are entitled to any of the relief

requested. In order to do so, the court must necessarily scrutinize Labor’s actions and rule on

both the Plaintiffs’ Motion for Judgment upon the Agency Record and the Defendant’s Motion

for a Voluntary Remand. However, Labor had sufficient notice of the challenged determination

and any claims that might flow from that determination from Plaintiffs’ Complaint and First

Amended Complaint.

B
Plaintiffs’ Claims Are Not Moot Because A Justiciable Issue Still Exists

Defendant claims that even if this court possesses jurisdiction, no justiciable issue exists

because Plaintiffs received relief, in the form of secondary-affected worker certification by

Labor, thus, rendering this case moot. Dismissal for failure to state a claim is proper only where

plaintiff can prove no set of facts which would entitle him to relief. See Constant, 848 F.2d at

1565. A case is not rendered moot if a portion of the Plaintiff’s claims or injuries are redressed

by the Defendant prior to judicial review. See NEC Corp., 151 F.3d at 1369. “[A] case is moot

when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in

the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 895 (1969) (internal citations omitted).

Plaintiffs, in their Motion for Judgment on the Agency Record claim that Labor’s alleged

lack of sufficient evidence to support their Negative Primary Certification, was an alternative

issue. They said it was reached only if the Court found proper Labor’s alleged failure to provide

adequate notice to the Quality Factory, Inc. workers of the Affirmative Secondary Determination.

Plaintiff’s Motion for Judgment on the Agency Record at 21-28. The Defendant has not

is to facilitate a proper decision on the merits.” Conley, 355 U.S. at 48.

23
submitted evidence cognizable by the court showing that Plaintiffs received any or all relief that

Plaintiffs claim are available to them.14

C
Plaintiffs’ Motion for Judgment on The Agency Record did not Abandon Any of Their
Claims

Defendant also argues that Plaintiffs “abandoned” their claim concerning the lack of

evidence supporting the Negative Primary Certification, the second of the two claims briefed by

Plaintiffs, “when they vigorously opposed our motion for voluntary remand.” Defendant’s

Motion at 7. In their Reply brief, Defendant claims that “any claim which is not pressed is

deemed abandoned. De Laval Seperator Co. v. United States, 511 F. Supp. 810, 812 (CIT

1981).”15 Defendant’s Reply at 6.

Plaintiffs state that they have not waived or abandoned any claims they made or rights

they may have in their appeal to this court. Waiver of a right or privilege must ordinarily be

evidenced by an intentional relinquishment or abandonment of that right or privilege. See

14
On April 9, 2004, Defendant filed a Motion for Leave to File a Status Report and Status
Report. In that Motion, Defendant alleged that an attached letter was sent by Labor to the
Plaintiffs and that the letter was relevant to its Motion to Dismiss. The Motion included no
proper foundation for the attachment, and the court, therefore, orally denied the motion and
refused to consider the letter during oral argument.
15
In De Laval, the court ruled on a motion for summary judgment submitted by the
defendant, United States. The plaintiff in the case claimed that its merchandise qualified for duty
free treatment. Defendant filed a motion for summary judgment claiming that the court’s
previous decision involving De Laval was stare decisis. In the preceding case, the plaintiff had
the opportunity to present evidence with respect to its claims. Additionally, some evidence with
respect to its merchandise was adduced by plaintiff through the testimony of a witness. The court
stated that the witness had previously discussed the merchandise and in the next sentence stated
that “[i]t is axiomatic that any claim which is not pressed is deemed abandoned.” De Laval, 1
C.I.T. at 146 (1981). This case is not procedurally analogous to the case at hand. Moreover,
Defendant’s claim that the opposition to a motion is an abandonment of a claim on the basis of
the sentence in De Laval, is arguable frivolous.

24
Millmaster Int’l, Inc. v. United States, 57 CCPA 108, 111 (1970). Defendant’s premise that

Plaintiffs’ abandoned their claim is neither supported by the law’s requirements nor Plaintiffs’

actions. Plaintiffs have never stated that they abandoned claims made in either their Complaint

or First Amended Complaint. Moreover, neither law nor logic links Plaintiffs’ alleged

abandonment of a claim to Plaintiffs’ opposition to Defendant’s motion.

Plaintiffs state that they opposed Defendant’s Motion for Voluntary Remand because they

claimed that remand for the purposes requested by Labor was neither necessary nor appropriate if

the court agreed with their claim that Labor failed to provide proper notice of Plaintiffs

certification as a group of secondarily-affected workers, and Plaintiffs attendant ability to apply

for benefits. While the court has yet to rule on both Plaintiffs’ Motion for Judgment on the

Agency Record and Defendant’s Motion for Voluntary Remand, Plaintiffs’ opposition to a

remand in and of itself does not waive the claims Plaintiffs made in either their Motion or

Complaints currently pending before this court.

D
Labor’s Notice of Affirmative Determination Regarding Plaintiffs’ Secondarily-Affected
Status

Labor also claims that no justiciable issue remains in this case because, on September 10,

2003, the agency published a notice concerning its May 9, 2002, affirmative determination

secondarily-affected worker group status in the Federal Register. Defendant’s Motion at 8,

Attachment A. Labor says that it “renotified” the state officials of the determination.

Plaintiffs argue that Labor’s claim that it “renotified” the state officials is incorrect.

During oral argument, and in their brief, Plaintiffs averred that they had examined the

administrative record numerous times and that it contained no evidence that Labor ever originally

25
notified the state authorities of the Affirmative Secondary Determination either when it was

made in 2002, or at any time thereafter. Plaintiffs argue that Defendant’s present claim that

Labor has now provided proper notice to the state authorities of the Affirmative Secondary

Determination has an insufficient evidentiary basis and is not part of the administrative record.

Plaintiffs state that the materials appended to Defendant’s Motion include a faxed document that

has multiple fax transmission lines and that none of the fax transmittal lines provides any

evidence of transmission to the state authorities, and cannot reasonably be relied upon by the

court to support Defendant’s contention. Defendant has not provided competent evidence that no

justiciable issue remains in this case; this argument can not even be considered by the court.16

16
Plaintiffs also claim that even if Labor sent a copy of its 2002 determination to its state
agents, the passage of more than 16 months raises questions regarding the validity of the notice
as well as its timeliness. Plaintiffs also argue that belated publication in the Federal Register
neither provided them with proper notice nor afforded them complete relief.
Plaintiffs enumerated in their Motion for Judgment on the Agency Record the types and
form of notice required by Labor’s own procedures and policies, but which they claim Labor
failed to provide. These include: (1) publication of the notice in the Federal Register; (2)
facsimile transmittal of the final determination to the State NAFTA-TAA Coordinator “within 24
hours after the Certifying Officer has signed it;” (3) notice to the petitioners; (4) notice to the
company contact person; and (5) notice to the Office of Worker Retraining and Adjustment
Programs. Plaintiff’s Motion at 14, App. 5 (App. A ¶ 4). Plaintiffs say that the State
NAFTA-TAA coordinator is then required to provide: (1) notice to workers covered by an
affirmative finding regarding qualification as a secondary firm that they are eligible to apply for
benefits; and (2) notice to the State Dislocated Worker Unit or the affirmative determination, in
order to ensure that rapid response and basic readjustment services are made available to all
secondarily-affected workers.
See Plaintiff’s Motion at 15, App. 5.
Plaintiffs sought relief in the form of measures to “permit all affected workers to avail
themselves, retroactively and prospectively, of all benefits to which they would have been
eligible has they received proper notice of the Affirmative Secondary Determination, without any
limitation due to the passage of time.” Plaintiffs’ Motion at 29. Plaintiffs claim that the Federal
Register notice on September 10, 2003, fails to conform to Labor’s own requirements concerning
publication and other forms of required notice.
Once again, the court can not reach this issue because the Defendant has not submitted
competent evidence supporting its Motion to Dismiss.

26
 VII
Conclusion

The dismissal standard is extraordinary and viewed with disfavor. In this case, Defendant

has failed to prove that no set of facts remain which would entitle Plaintiff to relief. See

Constant, 848 F.2d at 1565. Plaintiffs have given the Defendant fair notice of what their claims

are and the grounds upon which they rest. The standards for dismissal under the court’s rules are

not met by the facts of this case. Accordingly, the Defendant’s Motion is denied.

/s/ Evan J. Wallach
Evan. J. Wallach, Judge

Dated: May 11, 2004
New York, New York

27