Slip Op. 07-139
UNITED STATES COURT OF INTERNATIONAL TRADE
JULIE NGUYEN,
Plaintiff,
Before: Leo M. Gordon, Judge
v.
Court No. 06-00138
UNITED STATES SECRETARY
OF AGRICULTURE,
Defendant.
OPINION
[Plaintiff’s motion for judgment on the agency record denied.]
Dated: September 14, 2007
Wilmer Cutler Pickering Hale and Dorr LLP (John D. Greenwald and Lynn M. Fischer
Fox) for the Plaintiff.
Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson, Director; and
Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice (Richard P. Schroeder), for the Defendant.
Gordon, Judge: The court has jurisdiction over this action pursuant to
Section 142 of the Trade Act of 2002, as amended, 19 U.S.C. § 2395 (Supp. 2004). 1
Plaintiff Julie Nguyen challenges the denial of trade adjustment assistance (“TAA”).
For the reasons set forth below, the court denies Plaintiff’s motion for judgment on the
agency record and affirms the agency’s denial of trade adjustment assistance.
1
All further citations to the Trade Act of 1974, as amended by the Trade Act of 2002, are
to the relevant provision in Title 19 of the U.S. Code, 2004 Supplement.
Court No. 06-00138 Page 2
I. Background
In November 2004 the Foreign Agricultural Service (“FAS”) of the United States
Department of Agriculture (“USDA”) certified shrimpers landing their catch in Texas as
eligible to apply for fiscal year 2005 TAA benefits. Trade Adjustment Assistance for
Farmers, 69 Fed. Reg. 69,582 (Dep’t of Agric. Nov. 30, 2004) (notice of certification).
The 90-day period to apply for those benefits began on November 29, 2004, and closed
on February 28, 2005. Id.
Plaintiff’s husband, Be Nguyen (“Mr. Nguyen”), is a Texas shrimper.
On February 17, 2005, Mr. Nguyen timely filed an individual application for fiscal year
2005 benefits with the local Farm Service Agency (“county agent”) that administers the
TAA program in Jefferson/Orange County, Texas. (Pub. R. at 30.) 2 The county agent
granted the application on August 22, 2005, and paid Mr. Nguyen $10,000 in
adjustment assistance.
After receiving this payment the Nguyens learned that a husband and a wife
engaged in a farming operation as a joint venture are both eligible to receive TAA
benefits. The Nguyens subsequently submitted a revised application to the county
agent on December 29, 2005, listing both Plaintiff and her husband as eligible
producers, and re-attaching the certifying documentation submitted with Mr. Nguyen’s
individual application. (Pub. R. at 1.) The revised application was filed four months
after Mr. Nguyen received his $10,000 payment and 10 months after the closure of the
90-day application period for fiscal year 2005 benefits. The USDA denied the
2
The public version of the administrative record is cited as “Pub. R.”
Court No. 06-00138 Page 3
application as untimely. Because the application was untimely, the agency did not
consider the merits of the application.
Ms. Nguyen subsequently challenged the USDA’s decision by commencing an
action in the Court of International Trade. On February 5, 2007, the court issued an
opinion and order remanding the matter for further consideration by USDA.
See Nguyen v. United States Sec’y of Agric., 31 CIT __, 471 F. Supp. 2d 1350 (2007).
Among other things, the court held that the agency had not addressed whether the
Nguyens’ application was “subject to the 90-day deadline of [19 U.S.C. § 2401e(a)(1)],
or [was] instead governed by some non-statutory application deadline, which the
agency has the discretion to waive or modify under 7 C.F.R. § 1580.501.” Nguyen,
31 CIT at __, 471 F. Supp. 2d at 1352. The court also noted that the administrative
record indicated that the agency had incorrectly stated that the Nguyens were seeking
TAA benefits “as individuals and not jointly as originally filed.” Id. (internal citations
omitted). This misstatement of material fact necessitated a remand because Mr.
Nguyen originally applied as an individual, and the Nguyens’ revised application was for
a “joint operation.” Id. The court thus remanded the matter “for consideration of the
revised application in its proper context.” Id. at 1353.
On remand USDA acknowledged that Mr. Nguyen originally applied as an
individual, and that the Nguyens subsequently applied as a joint operation for the same
year. Reconsideration upon Remand of the Application of Be and Julie Nguyen at 1-2,
Nguyen v. United States Sec’y of Agric., No. 06-00138 (Apr. 16, 2007) (“Remand
Determination”). With respect to the whether the December 29, 2005, application was
governed by the 90-day deadline of 19 U.S.C. § 2401e(a)(1), or a non-statutory
Court No. 06-00138 Page 4
application deadline that the agency could waive under 7 C.F.R. § 1580.501, USDA
concluded that the 90-day statutory deadline applied and that it lacked authority to
consider the Nguyens’ revised application past the February 28, 2005, deadline.
Remand Determination at 4.
USDA also concluded that, even if it had the authority to waive the statutory
application deadline, it still would have found that the Nguyens would have been entitled
only to the statutory maximum payment of $10,000 because their documentation in
support of their application mandated that they be combined as one person for payment
limitations purposes. Id. at 5; see 19 U.S.C. § 2401e(c). Accordingly, the agency
concluded that even if the application had been timely filed, Ms. Nguyen would not have
been eligible for any additional benefits. Remand Determination at 5.
II. Standard of Review
The court upholds the USDA’s denial of trade adjustment assistance unless it is
unsupported by substantial evidence on the record. 19 U.S.C. § 2395(b). This
standard in essence requires the court to consider whether the agency’s determination
is reasonable given the administrative record as a whole. Nippon Steel Corp. v. United
States, 458 F.3d 1345, 1351 (Fed. Cir. 2006). On legal issues the court upholds the
agency’s determination if it is “in accordance with law.” See Lady Kim T. Inc. v. United
States Sec’y of Agric., 30 CIT ___, ___, 469 F. Supp. 2d 1262, 1263 (2006) (citing
Former Employees of Elec. Data Sys. Corp. v. U.S. Sec’y of Labor, 28 CIT ___, ___,
350 F. Supp. 2d 1282, 1286 (2004)).
Court No. 06-00138 Page 5
III. Discussion
As noted above, on remand the agency concluded that a revised application like
the one filed by Ms. Nguyen is subject to the 90-day statutory deadline of 19 U.S.C.
§ 2401e(a)(1). Remand Determination at 4. The agency therefore denied the Nguyens’
revised application as untimely because it was filed 10-months after the deadline.
To avoid the operation of the statutory deadline, Plaintiff invokes the doctrine of
equitable tolling. Pl.’s Objections to Remand Determination at 4-5. The doctrine of
equitable tolling permits a plaintiff to avoid the bar of the statute of limitations if despite
all due diligence plaintiff is unable to obtain essential information regarding the
existence of plaintiff’s claim. Weddel v. Sec’y of Health & Human Servs., 100 F.3d 929,
931 (Fed. Cir. 1996); Cada v. Baxter Healthcare Corp., 920 F.2d 446, 453 (7th Cir.
1990) (“[A] plaintiff who invokes equitable tolling to suspend the statute of limitations
must bring suit within a reasonable time after [plaintiff] has obtained, or by due diligence
could have obtained, the necessary information.”).
For a timely filed but defective submission like the Nguyens’, the defendant’s
misleading conduct may prove relevant if it somehow affects plaintiff’s diligence in
correcting the error, but it is not a technical requirement to equitably toll the statute of
limitations. See Frazer v. United States, 288 F.3d 1347, 1353 n.3 (Fed. Cir. 2002)
(“Timely filed but defective submissions differ; the defect need not necessarily be due to
misleading governmental conduct.”). The “critical inquiry” is plaintiff’s diligence.
Bensman v. United States Forest Serv., 408 F.3d 945, 964 (7th Cir. 2005), see also
Chung v. United States Dep’t of Justice, 333 F.3d 273, 278-79 (D.C. Cir. 2003)
(distinguishing equitable tolling from equitable estoppel).
Court No. 06-00138 Page 6
Plaintiff’s affidavit in support of her motion to proceed in forma pauperis,
(filed before Plaintiff obtained the assistance of pro bono counsel) contains some
evidence supporting a possible equitable tolling claim. In her affidavit Plaintiff alleges
that she “tried to apply for the grant at the same time” as her husband but “was told at
the time that only one person is qualif[ied] for it,” and that she “tried to apply again but
the [USDA] told [her] that it was too late.” Aff. In Support of Mot. to Proceed In Forma
Pauperis at 1-2, Nguyen v. United States Sec’y of Agric., No. 06-00138 (May 30, 2006).
Plaintiff offers no further information that explains her and her husband’s diligence in
seeking to correct Mr. Nguyen’s timely filed application from one that sought individual
benefits to one that sought joint benefits. Nothing indicates when or how Plaintiff
learned that a husband and wife were eligible for joint benefits and how quickly they
endeavored to correct the previous filing. Without more information about Plaintiff’s
diligence, the court cannot justify a further remand to the agency.
IV. Conclusion
The court denies Plaintiff’s motion for judgment on the agency record and will
enter judgment in favor of Defendant affirming the denial of Plaintiff’s application for
fiscal year 2005 TAA benefits.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: September 14, 2007
New York, New York
UNITED STATES COURT OF INTERNATIONAL TRADE
JULIE NGUYEN,
Plaintiff,
Before: Leo M. Gordon, Judge
v.
Court No. 06-00138
UNITED STATES SECRETARY
OF AGRICULTURE,
Defendant.
JUDGMENT
Upon consideration of Defendant’s Reconsideration Upon Remand of the
Application of Be and Julie Nguyen, dated April 16, 2007, Plaintiff’s Objections to
Defendant’s Reconsideration Upon Remand of the Application of Be and Julie Nguyen,
Defendant’s Response to Plaintiff’s Objections, and all other papers filed and
proceedings in this action, it is hereby
ORDERED that Defendant’s Reconsideration Upon Remand of the Application of
Be and Julie Nguyen is affirmed.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: September 14, 2007
New York, New York