Former Employees of Sonoco Products Co. v. United States Secretary of Labor

Slip Op. 03-62

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
________________________________________
:
FORMER EMPLOYEES OF SONOCO :
PRODUCTS CO., :
:
Plaintiffs, :
: Court No. 02-00579
v. :
:
UNITED STATES SECRETARY OF LABOR, :
:
Defendant. :
________________________________________:

Defendant, the United States Secretary of Labor (“Labor”),
moves to dismiss the action filed by Dorothy Fail (“Ms. Fail”), 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) 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.

Held: For the reasons stated below, Labor’s motion to dismiss
for lack of subject matter jurisdiction is granted.

[Labor’s motion is granted. Case dismissed.]

June 9, 2003

Baker & McKenzie (Lynn S. Preece and Bart M. McMillan) for
Dorothy Fail and the Former Employees of Sonoco Products Co.,
plaintiffs.
Court No. 02-00579 Page 2

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.

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

1
Dorothy Fail filed this action on behalf of the Former
Employees of Sonoco Products Co., pro se, on August 26, 2002. The
Court, on February 25, 2003, granted plaintiffs’ “Motion For Leave
to Proceed In Forma Pauperis,” and appointed Lynn Preece of Baker
& McKenzie “to serve without fee and to appear generally on behalf
of [the] plaintiff[s].” Order Granting Leave to Proceed In Forma
Pauperis.
Court No. 02-00579 Page 3

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 (1935).

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, slip op. 03-59 at 4 (CIT June 4, 2003) (not

yet published in Federal Supplement or CIT reporters). “A party,

2
Section 2395(a) permits “[a] worker[ or] group of workers
. . . aggrieved by a final determination of the Secretary of
Labor[,] . . . within sixty days after notice of such determination
[to] commence a civil action in the United States Court of
International Trade for review of such determination.” 19 U.S.C.
§ 2395(a) (emphasis added).
Court No. 02-00579 Page 4

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 (1980) (citing United States

v. Sherwood, 312 U.S. 584, 586 (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 (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 (1995) (citing United States

v. Nordic Vill., Inc., 503 U.S. 30, 33 (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
Court No. 02-00579 Page 5

(“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); Kelly 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
Court No. 02-00579 Page 6

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.
Court No. 02-00579 Page 7

[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 Fabrication, Inc. v.

United States Sec’y of Labor, No. 02-00522, 2003 Ct. Int’l Trade

LEXIS 27, at *2-*6 (CIT Mar. 14, 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
Court No. 02-00579 Page 8

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 burden of

presenting evidence or arguments that would warrant equitable

relief. See Def.’s Reply Pls.’ Opp’n Mot. Dismiss (“Def.’s Reply”)

at 1. Although Labor recognizes that equitable tolling “will

afford a late-filing party an opportunity to file out of time[,]”
Court No. 02-00579 Page 9

it is applied “where ‘the claimant has actively pursued his

judicial remedies by filing a defective pleading during the

statutory period, or where the complainant has been induced or

tricked by his adversary’s misconduct into allowing the filing

deadline to pass.’” Id. at 2 (quoting Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 96 (1990)). Since neither of these

conditions exist in the case at bar, Labor argues that plaintiffs

did not meet the equitable tolling standard. See Def.’s Reply at

3-4. Moreover, Labor contends that plaintiffs did not exercise due

diligence in requesting the appropriate information regarding their

petition and that, accordingly, the Court should deny jurisdiction.

See id. at 6-7.

III. Analysis

The Court in Quality Fabrication, 2003 Ct. Int’l Trade LEXIS

27, at *10 n.8, explained that a plaintiff must “claim equitable

considerations [and] exercise due diligence in bringing their

claim” in order to preserve their right to have a court review

Labor determinations. Applying this two-part test to the facts of

the case at bar, the Court finds that plaintiffs failed to meet all

the requirements demanded from plaintiffs who pray for equitable

remedies. See Irwin, 498 U.S. at 96 (stating that “[f]ederal

courts have typically extended equitable relief only sparingly . .

. [and that the Supreme Court] ha[s] generally been much less
Court No. 02-00579 Page 10

forgiving in receiving late filings where the claimant failed to

exercise due diligence in preserving his legal rights”).

Notwithstanding plaintiffs’ arguments that equitable remedies

should be extended in the case at bar in accordance with the test

articulated by Quality Fabrication, the Court finds that the

efforts exhibited by the Sonoco plaintiffs to gather information

about their NAFTA-TAA petition fails to approach the level of

diligence put forth by the plaintiffs in Quality Fabrication, or

that of a hypothetical reasonable person who was notified that his

company would file a NAFTA-TAA petition on his behalf. See Former

Employees of Siemens Info. Communication Networks, Inc. v. Herman,

Sec’y, United States Dep’t of Labor, 24 CIT 1201, 1208, 120 F.

Supp. 2d 1107, 1114 (2000) (stating that “[w]hether a plaintiff has

acted with due diligence is a fact-specific inquiry, guided by

reference to the hypothetical reasonable person”) (citing Dodds v.

Cigna Sec., Inc., 12 F.3d 346, 350 (2d Cir. 1993); Valverde v.

Stinson, 224 F.3d 129, 134 & n.4 (2d Cir. 2000)).

In Quality Fabrication, the plaintiffs mailed their NAFTA-TAA

petition to Labor, while a former employee of Quality, Margaret

Miller continuously checked the DOL website from the time of

filing. See Quality Fabrication, 2003 Ct. Int’l Trade LEXIS 27,

at *2. Miller did so because she was affirmatively instructed by

government officials that the DOL website was the appropriate
Court No. 02-00579 Page 11

source of information. See id. at *13. Miller subsequently

emailed her regional Labor office to inquire about her petition.

See id. at *2. Two days later, Miller received an email response

from Labor stating “‘these things take time.’” Id. Miller,

however, pursued this action pro-actively in that she contacted:

(1) two local Representatives from Congress; (2) the State of

Pennsylvania Department of Labor Trade Adjustment Representative;

(3) a state legislator; and (4) Labor’s NAFTA-TAA office located in

Washington, D.C. See id. at *2-*4. In addition to these extensive

efforts, Miller repeatedly contacted her regional Labor office for

a period of four months, and received no response. See id. at *4.

In the case at bar, the plaintiffs’ efforts were limited to Ms.

Fail’s infrequent inquiries with her local employment office and

with other displaced Sonoco workers. See Pls.’ Resp. at 3. The

purpose of Ms. Fail’s three visits to the state employment office,

within the relevant time frame, was never strictly to request

information about the Sonoco petition.3 Therefore, the Court finds

that Ms. Fail’s inquiries as to the status of the Sonoco petition

only with the local state employment office do not meet the due

diligence requirement imposed on plaintiffs who seek to argue

equitable remedies. Compare Siemens, 24 CIT at 1202-05, 120 F.

3
The primary reason Ms. Fail visited the local Labor
office on May 29, 2002, July 1, 2002, and July 16, 2002, was to
search for further employment. See Def.’s Reply at Ex. 1; see also
Pls.’ Resp. at 3 ¶ 5.
Court No. 02-00579 Page 12

Supp. 2d at 1109-11 (holding that plaintiffs’ allegations of

inducement and trickery were without merit and rejecting arguments

of equitable tolling), with Quality Fabrication, 2003 Ct. Int’l

Trade LEXIS 27 at *2-*5 (holding that the plaintiff’s extensive

efforts to inquire as to the status of the relevant NAFTA-TAA

petition were sufficient to satisfy the due diligence standard).

Plaintiffs, acting in a reasonably prudent manner, should have

requested information from additional sources, such as Labor’s

NAFTA-TAA office, or from Sonoco who filed the NAFTA-TAA petition

on their behalf, instead of strictly depending on casual inquiries

as to the status of the Sonoco petition with the local employment

office. A reasonable plaintiff acting with due diligence would

have investigated additional sources of information. See Siemens,

24 CIT at 1208, 120 F. Supp. 2d at 1114 (stating that “[w]hether a

plaintiff has acted with due diligence is a fact-specific inquiry,

guided by reference to the hypothetical reasonable person”)

(citations omitted).

Second, and more importantly, there was no misconduct by any

government official that can be construed as having induced or

tricked Ms. Fail or any other Sonoco employee into missing the

sixty-day deadline prescribed by 19 U.S.C. § 2395(a). Although the

plaintiffs do not affirmatively state that Labor, in any way,

induced or tricked them into missing the deadline, they do suggest
Court No. 02-00579 Page 13

that Ms. Fail had to rely on inadequate information provided by

officials at the local state employment office who never clarified

the publication rule. See Pls.’ Resp. at 7. However, the fact

that plaintiffs relied on the wrong source of information,

independent of any affirmative representations from the government,

does not shift blame to the government or prove that the plaintiffs

were tricked or induced into missing the filing deadline. Unlike

the plaintiffs in Quality Fabrication, who sought information from

a variety of government sources, and received specific assurances

from those sources that Labor’s website would provide the

appropriate notification instead of the Federal Register, the

Sonoco plaintiffs simply failed to diligently inquire as to their

NAFTA-TAA petition.

CONCLUSION

After weighing the facts of this case, the Court finds that

plaintiffs failed to act with due diligence. The government’s

actions cannot be construed as inducing or tricking Ms. Fail or any

other Sonoco employee into missing the relevant sixty-day deadline.
Court No. 02-00579 Page 14

The Court will not apply the doctrine of equitable tolling in a

situation where the plaintiffs simply did not try hard enough to

access the information necessary to file a timely appeal. Judgment

will be entered accordingly.

______________________________
NICHOLAS TSOUCALAS
SENIOR JUDGE

Dated: June 9, 2003
New York, New York