                           SLIP OP. 05-135

           UNITED STATES COURT OF INTERNATIONAL TRADE


___________________________________
                                   :
FORMER EMPLOYEES OF BENEE’S, INC.  :
                                   :
               Plaintiffs,         :
                                   : Before: Richard K. Eaton,
                                   : Judge
                                   :
                                   : Court No. 05-00378
          v.                       :
                                   :
                                   :
UNITED STATES SECRETARY OF LABOR, :
                                   :
               Defendant.          :
___________________________________:

[Defendant’s motion to dismiss denied]

                                       Dated: October 14, 2005

     Dennis Parent, pro se, for plaintiffs.

     Peter D. Keisler, Assistant Attorney General, Civil
Division, United States Department of Justice; David M. Cohen,
Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice (Jefferson Hughes) for defendant.


                         MEMORANDUM AND ORDER

     Eaton, Judge:   This Trade Adjustment Assistance (“TAA”) case

is before the court on the Motion to Dismiss of defendant United

States Secretary of Labor.    The basis for defendant’s motion is

its contention that the court lacks subject matter jurisdiction

because plaintiffs failed to seek judicial review of the negative

determination regarding TAA benefits within the sixty-day period

prescribed by statute.    See Notice of Determination Regarding
Court No. 05-00378                                            Page 2

Eligibility to Apply for Worker Adjustment Assistance and NAFTA

Transitional Adjustment Assistance, 69 Fed. Reg. 57092 (Sept. 23,

2004), Admin. R. Doc. 24.   The court has jurisdiction pursuant to

19 U.S.C. § 2395(c).   For the reasons set forth below,

defendant’s Motion to Dismiss is denied.



                        STANDARD OF REVIEW

     Where the court’s jurisdiction is challenged, “[t]he party

seeking to invoke the Court’s jurisdiction bears the burden of

proving the requisite jurisdictional facts.”   Former Employees of

Sonoco Prods. Co. v. United States Sec’y of Labor, 27 CIT ___,

___, 273 F. Supp. 2d 1336, 1338 (2003) (citing McNutt v. Gen.

Motors Acceptance Corp., 298 U.S. 178, 179 (1936)).   At the same

time, in the context of a motion to dismiss, “the Court assumes

‘all well-pled factual allegations are true,’ construing ‘all

reasonable inferences in favor of the nonmovant.’” United States

v. Islip, 22 CIT 852, 854, 18 F. Supp. 2d 1047, 1051 (1998)

(quoting Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.

Cir. 1991)).



                            DISCUSSION

     The facts, as set out in defendant’s papers, are as follows:

     On September 13, 2004, the Department of Labor
     (“Labor”) issued a negative determination for former
     employees of Benee’s Inc. regarding eligibility to
     apply for Trade Adjustment Assistant (“TAA”). This
Court No. 05-00378                                            Page 3

     denial was published in the Federal Register on
     September 23, 2004.

     On March 24, 2005, Labor received from Mr. Dennis
     Parent, a former employee of Benee’s, a facsimile copy
     of a letter signed by Mr. Parent dated October 13,
     2004. The letter requested that Labor reconsider its
     negative determination as to the petition on behalf of
     former Benee’s employees.

     In a letter dated April 1, 2005, Labor declined Mr.
     Parent’s request because it had “not receive[d] any
     correspondence from [Mr. Parent] previously and there
     [was] no evidence of [his] filing the request for
     reconsideration prior to March 24, 2005,” and stated
     that its previous denial notice was now final because
     the filing period for administrative reconsideration
     had expired.

Def.’s Mem. in Supp. Mot. Dismiss (“Def.’s Mem.”) at 1–2

(internal citations omitted).



     Mr. Parent then appealed to this Court.   See Letter from

Dennis Parent to U.S. Court of International Trade of 5/19/05.

In that letter, deemed a complaint by the Court Clerk,1 Mr.

Parent asserts that, in fact, he had requested reconsideration of

Labor’s negative determination within 30 days of the notice of

denial’s publication in the Federal Register: “I wish to appeal

the decision of the Department of Labor that I did not meet the

date deadline of 30 days after posting with [the] Federal

Register.” Id.   Mr. Parent asserts that he emailed his request

for reconsideration on October 6, 2004.   In addition, the record


     1
          See Letter from U.S. Court of International Trade to
Dennis Parent of 6/10/05.
Court No. 05-00378                                            Page 4

contains a copy of a letter dated October 13, 2004, in which Mr.

Parent requests reconsideration.   See Letter from Dennis Parent

to U.S. Department of Labor of 10/13/04, Admin. R. Doc. 27.    As

explained in defendant’s papers,

     Mr. Parent stated that he had attached a copy of all
     his correspondence, which included (1) a facsimile
     cover page from his March 24, 2005, transmission; (2)
     an unsigned letter dated October 6, 2004; and (3) an
     unsigned letter dated November 17, 2004. Id. The
     unsigned letter dated November 17, 2004, with the
     exception of two minor changes in paragraph 7, is
     identical to the signed letter dated October 13, 2004,
     previously submitted by Mr. Parent to Labor on March
     24, 2005, as evidence of an attempt to communicate with
     Labor after publication of Labor’s adverse
     determination.

Def.’s Mem. at 2–3.


     The basis for defendant’s motion to dismiss is that the

court lacks subject matter jurisdiction because Mr. Parent failed

to appeal to this court within the sixty days prescribed by

statute2 following Labor’s final determination, which was

published on September 23, 2004, and failed to extend “the date




     2
          Title 19 U.S.C. § 2395(a) states in relevant part:

          Any worker . . . aggrieved by a final
          determination of the Secretary of Labor under
          section 2273 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.
Court No. 05-00378                                           Page 5

for appeal by timely3 requesting administrative reconsideration.”

Id. at 7.    Defendant’s motion is therefore based on a question of

fact, i.e., whether plaintiff timely sought administrative

review.   Although Mr. Parent, proceeding pro se, did not reply to

defendant’s motion to dismiss, the court must nonetheless make

its decision based on the complaint.



     In the context of a motion to dismiss, “the Court assumes

‘all well-pled factual allegations to be true,’ construing ‘all

reasonable inferences in favor of the nonmovant.’”    Islip, 22 CIT

at 854, 18 F. Supp. 2d at 1051 (quoting Gould, 935 F.2d at 1274);

Amoco Oil Co. v. United States, 234 F.3d 1374, 1376 (Fed. Cir.

2000).    Thus, the court must assume that Mr. Parent’s assertions,

in his complaint, with respect to timely filing of his

application for reconsideration are true.    Defendant’s

contentions to the contrary do not overcome this assumption.   If

an examination of the facts should reveal that no timely request

was made, then Labor may make a new motion.    In the context of a


     3
          Requests for administrative reconsideration of Labor
determinations are governed by 29 C.F.R. § 90.18, which states in
relevant part:

            Any worker . . . aggrieved by a determination
            . . . may file an application for
            reconsideration of the determination . . . .
            All applications must be in writing and must
            be filed no later than thirty (30) days after
            the notice of the determination has been
            published in the Federal Register.
Court No. 05-00378                                               Page 6

motion to dismiss, however, establishment of the facts must wait

for another day.     That being the case, defendant’s motion fails.



     Therefore, it is hereby

     ORDERED that defendant’s motion to dismiss is denied, and it

is further

     ORDERED that the defendant file an answer to plaintiff’s

complaint no later than November 21, 2005.



                                           /s/Richard K. Eaton
                                              Richard K. Eaton
Dated:    October 14, 2005
          New York, New York
