Slip Op. 03 - 166

 UNITED STATES COURT OF INTERNATIONAL TRADE
__________________________________________
                                          :
FORMER EMPLOYEES OF MOTOROLA, INC. :
                                          :
                  Plaintiffs,             :
                                          :
            v.                            :                 Before: MUSGRAVE, JUDGE
                                          :
THE UNITED STATES DEPARTMENT              :                 Court No. 02-00820
OF LABOR                                  :
                                          :
                  Defendant.              :
__________________________________________:


[Plaintiffs brought this action challenging the Department of Labor’s decision denying the former
employees of Motorola, Inc.’s Arlington Heights, IL facility certification for Trade Adjustment
Assistance benefits. The Department of Labor moved to dismiss this action on the ground that it
was filed 21 days after the 60 day period provided by 19 U.S.C. § 2395(a) and 28 U.S.C. § 2636(d)
to bring such an action had expired. HELD: As Plaintiffs’ suit was untimely and Plaintiffs have not
demonstrated a basis for equitable tolling of the statute of limitations, the Department of Labor’s
Motion to Dismiss is granted.]


                                                                     Decided: December 17, 2003


       Sonnenberg & Anderson (Paul S. Anderson and M. Jason Cunningham) for plaintiffs.

        Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (John H. Williamson), and Employment and Training Legal Services Division, Office of the
Solicitor, U.S. Department of Labor (Jayant Reddy), of counsel, for defendant.


                                           OPINION

       Plaintiffs, former employees of Motorola Inc.’s Global Telecommunications Solution Sector,

Engineering Computing Level 2 Group located in Arlington Heights, Illinois, brought this action on
Court No. 02-00820                                                                               Page 2


December 30, 2002 seeking judicial review of the negative determination by Defendant, the United

States Department of Labor (“Labor”), regarding their eligibility for trade adjustment assistance

benefits. Presently before the Court is a motion by Labor to dismiss this action for lack of

jurisdiction on the ground that Plaintiffs filed their summons and complaint with the Court outside

the 60 day time limit prescribed by 19 U.S.C. § 2395(a) and 28 U.S.C. § 2636(d). For the reasons

which follow, Labor’s motion is granted.



                                               Background

            Plaintiffs, acting pro se,1 submitted a petition for trade adjustment assistance to Labor via

certified mail on December 14, 2001. On March 7, 2002 Plaintiff’s were notified via a form letter

that they were denied eligibility for trade adjustment assistance because they failed to meet one of

the eligibility requirements.       Attached to the form letter was a copy of Labor’s negative

determination dated December 12, 2001, which was based on an investigation of an earlier petition

submitted by engineering and administrative employees of Motorola’s Arlington Heights, Illinois

facility.

        On May 2, 2002 Labor approved a petition for trade adjustment assistance submitted by

former employees of Motorola’s Global Telecommunications Solution Sector and Commercial,

Government, Industrial Solutions Sector in Schaumburg, Illinois. Plaintiffs subsequently contacted

a trade adjustment assistance representative with the Illinois Department of Employment Security

(“IDES”), who advised them to petition Labor to amend the certification for the Schaumburg facility



        1
              Present counsel for Plaintiffs was appointed by the Court on March 4, 2003.
Court No. 02-00820                                                                                  Page 3


to include the Arlington Heights facility. On June 25, 2002 Plaintiffs submitted a formal request for

such an amendment. Labor treated this request for amendment as a request for reconsideration of

another negative determination of the Arlington Heights employees eligibility for trade adjustment

assistance dated June 27, 2002. In a decision dated October 1, 2002 Labor once again determined

that Plaintiffs were ineligible for trade adjustment assistance. The cover letter to this decision, dated

October 2, 2002, stated that “interested parties have 60 days from the date this decision is published

in the Federal Register to file for judicial review.” The decision was published in the Federal

Register on October 10, 2002, and the 60 day period during which Plaintiffs were permitted to file

an action in this Court ended December 9, 2002. Plaintiffs’ letter, constituting their summons and

complaint, was filed with the Court on December 30, 2002.



                                              Discussion

        Plaintiffs acknowledge that they commenced this action after the 60 day period had expired,

but argue that the doctrine of equitable tolling should apply in this case since they exercised “the

requisite due diligence in pursuing their claim.” Mem. in Supp. of Pl.s’ Opp’n to Def.’s Mot. to

Dismiss (“Pl.’s Br.”) at 6. In Former Empl. of Siemens Info. Comm. Networks, Inc. v. Herman, 24

CIT 1201, 

 (2000) the court explained:

                Equitable tolling is generally limited to situations where a claimant has
        actively pursued judicial relief by filing a defective pleading within the statutory time
        period, or where a claimant has been “induced or tricked by his adversary’s
        misconduct into allowing the filing deadline to pass.” Equitable tolling is not
        available where the plaintiff failed to exercise due diligence. Whether a plaintiff has
        acted with due diligence is a fact-specific inquiry, guided by reference to the
        hypothetical reasonable person.

24 CIT at 1208, 120 F. Supp. 2d at 1114 (citations omitted).
Court No. 02-00820                                                                                Page 4


        In support of their argument, Plaintiffs note that when they were preparing their petitions for

trade adjustment assistance they sought guidance from other workers who had experience filing such

petitions. After filing their petition, Plaintiffs’ pro se representative avers that he regularly checked

the status of their petition on Labor’s website and contacted a representative with IDES for further

assistance. Moreover Plaintiffs allege that they were confused by the March 7, 2002 denial of their

eligibility for trade adjustment assistance since the determination attached to the letter denying their

eligibility pertained to an earlier petition filed by other former employees at the Arlington Heights

facility. Plaintiffs’ representative once again contacted a representative with IDES and at that

person’s recommendation filed a petition for Labor to amend the certification for the Schaumburg

facility to include the Arlington Heights facility. Finally, when Plaintiffs’ received the denial of

their petition to amend the certification, they allege that they were further confused by the fact that

this was treated as a request for administrative reconsideration of a different decision than the one

attached to the denial of eligibility they received on March 7. Plaintiffs state that their representative

“had little or no idea what Labor had actually received from him, what they had actually decided, and

when he was expected to file a petition with this court based on the inconsistent notices from Labor.”

Pl.s’ Br. at 8.

        Although it is clear from the facts that Labor made an already complicated process even

harder for Plaintiffs, despite its “obligat[ion] to conduct its investigations with the utmost regard for

the interests of the petitioning workers,” Stidham v. U.S. Dep’t of Labor, 11 CIT 548, 551, 669 F.

Supp. 432, 435 (1987), there is no evidence that Labor’s actions prevented Plaintiffs from filing their

summons and complaint within the 60 day period. The cover letter dated October 2, 2002, which
Court No. 02-00820                                                                              Page 5


accompanied the Notice of Negative Determination Regarding Application for Reconsideration,

plainly stated that the Notice would be published in the Federal Register and that interested parties

would have 60 days from the date of publication to file with this court for judicial review. Plaintiffs’

pro se representative “contacted the Court of International Trade in late October 2002 regarding his

options for judicial review.” Pl.s’ Br. at 3. Although Plaintiffs’ representative was unable to access

forms the Office of the Clerk of the Court sent to him electronically, printed forms were

subsequently sent to him via the U.S. Postal Service and Plaintiffs do not allege that this delay

caused them to miss the filing deadline. Plaintiffs assert that their representative was unaware that

the documents would be deemed filed when they were received unless they were sent via certified

mail. Nevertheless, the documents were mailed eight days after the 60 day period expired. Thus,

the Court concludes that while Plaintiffs may have been reasonably diligent in pursuing their claim

for trade adjustment assistance prior to October 2002, the fact that they did not file their summons

and complaint by the December 9, 2002 deadline was at best an instance of simple neglect, which

does not provide grounds for equitable tolling. See Bonneville Assoc. Ltd. v. Barram, 

,

1365 (Fed. Cir. 1999) (“[T]he principals of equitable tolling . . . do not extend to what is at best a

garden variety claim of excusable neglect.” (quoting Irwin v. Dep’t of Veterans Affairs, 

,

96 (1990))) .

       Plaintiffs also argue that Labor never “properly considered [their] petition of December 12,

2001” and thus “substantial justice requires that they be allowed to proceed before this court and

plead their case on the merits, or alternatively that the matter be remanded to Labor for further

review.” Pl.s’ Br. at 11. While the degree of consideration Labor afforded Plaintiffs’ petition is
Court No. 02-00820                                                                                Page 6


uncertain, the October 2, 2002 cover letter clearly notified Plaintiffs that they had 60 days to seek

redress in this court. Because Plaintiffs did not satisfy this jurisdictional requirement, the substantive

merits of their claim are not properly before the Court for review.



                                              Conclusion

        For the foregoing reasons, Labor’s Motion to Dismiss is granted.




                                                   ________________________________________
                                                         R. KENTON MUSGRAVE, JUDGE


Dated: December 17, 2003
       New York, New York