Slip Op. 07-53
UNITED STATES COURT OF INTERNATIONAL TRADE
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KYONG TRUONG, :
:
Plaintiff, :
:
v. : Before: Pogue, Judge
: Ct. No. 05-00419
UNITED STATES SEC’Y OF :
AGRICULTURE, :
:
Defendant. :
:
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[Remanded for consideration of Plaintiff’s claim for equitable
tolling; Defendant’s motion to dismiss denied]
Dated: April 4, 2007
Williams Mullen (Jimmie V. Reyna and Francisco J. Orellana) for
Plaintiff;1
Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson,
Director, Patricia M. McCarthy, Assistant Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(David S. Silverbrand, Trial Attorney) for Defendant United States
Secretary of Agriculture.
MEMORANDUM OPINION
Pogue, Judge: The captioned matter is before the court following
a prior remand of Plaintiff Kyong Truong’s claim for equitable
tolling. See Truong v. United States Sec’y of Agric., 30 CIT __,
Slip. Op. 06-150 (Oct. 12, 2006). On remand, the Secretary of
Agriculture ("the Secretary" or “the government”) denied Mrs.
Truong’s claim. In response, Plaintiff challenges the factual
1
The court would like to express its appreciation to
Williams Mullen for representing plaintiff pro bono.
Ct. No. 05-00419 Page 2
findings upon which the Secretary’s redetermination is based. For
the reasons set forth below, the court remands this matter for the
government to consider any evidence necessary to make thorough,
factual findings, including Mrs. Truong’s affidavit in support of
her claim for equitable tolling and the affidavit first introduced
by the government in its briefing.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction over this action pursuant to 19
U.S.C. § 2395(c).2 Pursuant to this statutory provision, the court
reviews the remand determination for compliance with the remand
order. Cf. NMB Sing. Ltd. v. United States, 28 CIT __, 341 F. Supp.
2d 1327 (2004) (affirming International Trade Commission’s
determinations on remand where the determinations were in
accordance with law, supported by substantial evidence, and
otherwise satisfied the remand order); see also Olympia Indus.,
Inc. v. United States, 23 CIT. 80, 82, 36 F. Supp. 2d 414, 415
(1999) (affirming after “review[ing] Commerce's compliance with
these instructions in its Remand Results” and finding the
determination to be supported by substantial evidence and in
accordance with law). The court will uphold the government’s
2
All references to 19 U.S.C. §§ 2395, 2401 et seq. are to
Supplement IV of the 2000 edition of the United States Code
(2004). Otherwise, references to the United States Code are to
the 2000 edition.
Ct. No. 05-00419 Page 3
factual determinations if they are supported by substantial
evidence. 19 U.S.C. § 2395(b). The court will uphold the
Secretary’s legal determinations if they are “in accordance with
law.” Former Employees of Gateway Country Stores LLC v. Chao, 30
CIT __, __, Slip Op. 06-32 at 9 (March 3, 2006), Former Employees
of Elec. Data Sys. Corp. v. United States Sec’y of Labor, 28 CIT
__,__, 350 F. Supp. 2d 1282, 1286 (2004), Former Employees of Rohm
& Haas Co. v. Chao, 27 CIT 116, 122, 246 F. Supp. 2d 1339, 1346
(2003).
BACKGROUND3
On November 30, 2004, the Secretary recertified Texas
shrimpers for trade adjustment assistance (“TAA”) under the Trade
Adjustment Assistance Reform Act of 2002, Pub. L. 107-210, Title 1,
Subtitle C, § 141, 116 Stat. 933, 946 (2002), 19 U.S.C. § 2401(e)
(West Supp. 2005). See Trade Adjustment Assistance for Farmers, 69
Fed. Reg. 69,582, 69,582 (United States Dep’t Agric. Nov. 30, 2004)
(notice). From the date of this notice, the Trade Act of 2002
required eligible shrimpers to file an application by February 28,
2005 in order to qualify for benefits. See id. See generally 19
U.S.C. § 2401e(a)(1); 7 C.F.R. §§ 1580.102, 1580.301(b). Mrs.
Truong filed her application for benefits on March 21, 2005 – some
3
The facts of this case are more fully detailed in the
court’s earlier decision. Truong, 30 CIT __, Slip. Op. 06-150.
Here, the court recounts only those facts relevant to its review
of the remand determination.
Ct. No. 05-00419 Page 4
21 days after the deadline. Citing the untimeliness of her
application, the United States Department of Agriculture’s Farm
Service Agency (“FSA”) denied Mrs. Truong’s application on May 3,
2005.
Subsequently, Mrs. Truong brought suit before the court,
claiming that the FSA did not properly provide her with notice of
the recertification of benefits, as required by 19 U.S.C. § 2401d,4
and contending therefore that the filing deadline should be
equitably tolled. Although Mrs. Truong did not initially raise an
adequacy of notice defense before the agency, Mrs. Truong attached
an affidavit to her Cross-Motion for Summary Judgment in which she
attests that she had no notice of the filing deadline, due in part
to being out at sea regularly between November, 2004 and March,
2005. Aff. Kyong Truong (Mar. 27, 2006). Because the Secretary
had not considered Mrs. Truong’s claim for equitable tolling, the
court remanded the matter, instructing the government to make
findings of fact as to (a) whether the FSA complied with its
statutory duty to notify Mrs. Truong of the recertification, (b)
4
That provision provides in relevant part:
Notice of benefits
(1) In general
The Secretary shall mail written notice of the benefits
available under this part to each agricultural
commodity producer that the Secretary has reason to
believe is covered by a certification made under this
part.
19 U.S.C. § 2401d(b)(1).
Ct. No. 05-00419 Page 5
whether Mrs. Truong had actual notice of the recertification, and
(c) whether Mrs. Truong had shown due diligence after receiving
actual notice. Truong, 30 CIT __, Slip. Op. 06-150 at 13-14.
On remand, the Secretary considered additional evidence, see
Second Supp. List Docs. Constituting Admin. R. (“Second Supp.
Admin. R.), but did not enter into the administrative record Mrs.
Truong’s affidavit. Id. The Secretary’s remand determination found
that FSA gave notice to Mrs. Truong of her eligibility for benefits
and the deadline for applying therefor, that Mrs. Truong had actual
notice of the deadline, and that Mrs. Truong has not shown that she
exercised due diligence and is therefore ineligible for TAA cash
benefits.
DISCUSSION
A. The Secretary’s Finding that the FSA Notified Mrs. Truong of the
Deadline is not Supported by Substantial Evidence on the Record
In its remand determination, the Secretary found that the FSA
had satisfied its statutory duty under 19 U.S.C. § 2401d to notify
Mrs. Truong of her eligibility for trade adjustment assistance and
the deadline for applying for these benefits. The evidence the
Secretary relied upon in so finding has now been placed in the
administrative record, which, despite Mrs. Truong’s objections, the
government properly reopened in order to make its factual
determinations. See, e.g., Anderson v. United States Sec’y of
Agriculture, 30 CIT __, __ (2006), 429 F. Supp. 2d 1352, 1356
(remanding for agency to “re-open the record and obtain all
Ct. No. 05-00419 Page 6
evidence reasonably necessary to ensure that its administrative
record is complete”).
The government’s new evidence contains, inter alia, a list of
2,370 addresses, including that of Mrs. Truong. Second Supp. Admin.
R. Doc. 8. Also included were invoices for the processing of and
postage for the Brazoria-Galveston Newsletter for the months of
December, January, and February, showing that approximately 1,750
newsletters were sent out for each of those months.5 Second Supp.
Admin. R. Docs. 2-7. Because Mrs. Truong’s address was on the list
of 2,370 addresses, the Secretary concluded that the FSA had sent
Mrs. Truong the Brazoria-Galveston Newsletter for those three
months.6 The record established, however, that approximately 600
fewer newsletters were posted and processed than there were
addresses, see Court’s Letter to Counsel (Dec. 8, 2006), and
different numbers of newsletters were processed and posted in
different months, see Court’s Letter to Counsel (Jan. 26, 2007).
Faced by the facts on record, the court requested further briefing
5
Specifically, the number of newsletters for which
processing/postage fees were incurred for the three months were
1,774/1,746 for December, and 1,781/1,751 for both January and
February. Second Supp. Admin. R. Docs. 2-7. There is no
explanation in the record for the difference between the number
of newsletters processed and the number posted in each month.
6
The Brazoria-Galveston County Newsletters for the months of
December 2004, January and February 2005 are included in the
Supplement to the Administrative Record at pages 8-10. The
newsletters, put out by the FSA, include notification of the
Secretary’s certification of shrimpers and the deadline for
filing an application for benefits. Supp. Admin. R. at 8-10.
Ct. No. 05-00419 Page 7
on these issues.
In response to the court’s request, the government filed
supplemental briefing and attached an affidavit from the County
Executive Director of the Brazoria County FSA office, Janet Sronce,
see Aff. Janet Sronce, Attach. To Def.’s Resp. Ct.’s Q. (“Sronce
Aff.”). The affidavit explained that only one newsletter is sent
to each household, though each individual producer’s name is listed
separately on the address list, thus offering a plausible
explanation for the discrepancies between the address list and the
processing and postage numbers.7 However, Ms. Sronce also
explained that the address list containing Mrs. Truong’s address
was not necessarily identical to the list(s) used from December,
2004 through February, 2005, “because this list is updated on a
regular basis.” Sronce Aff. at ¶5. The government’s briefing
confirms that “[t]he record contains the most updated address list
at the time of filing the record.” Def.’s Resp. Ct.’s Supp. Q. 2.
There is therefore a gap in the record chain of causality upon
which the government bases its remand determination concerning
notice to Mrs. Truong. Specifically, there is no evidence that
Mrs. Truong’s address was used to mail the newsletters during the
relevant time frame. The remand results, however, contain no
7
The court notes, however, that the affidavit does not
indicate how newsletters are addressed for a household with
multiple producers in residence. Thus, the government’s
statement of its practice may also provide evidence that notice
is not given to each producer.
Ct. No. 05-00419 Page 8
discussion of this gap in the record. Rather, the record leaves
open the possibility that Mrs. Truong’s name was not on the list
during the relevant months, and was only added later.
Nevertheless, the Secretary found that “Mrs. Truong’s name and
address appear on the mailing list for the newsletter” and “[t]he
invoices for processing and postage for the December newsletter are
dated December 20, 2004.” Remand Det. at 1 (emphasis added).8
Thus, the government implied that the address list in the record
corresponds to the processing and postage invoice for December,
2004, (and the following months) without acknowledging or weighing
other possibilities. Indeed, the Sronce Affidavit, which only
explains, but does not cure, the discrepancy, was prepared for this
litigation, not during agency fact-finding on remand. Therefore,
the agency’s determination as stated on remand is not supported by
substantial evidence in the record.
In addition, the agency’s methodology during remand does not
meet the “threshold requirement of reasonable inquiry” for TAA
claims, without which the government’s determinations “cannot
constitute substantial evidence upon which a determination can be
affirmed.” Former Employees of Hawkins Oil & Gas, Inc. v. United
8
The Remand Determination contains a similar assertion for
January, 2005, that “[t]he invoices for processing and postage
for the January newsletter are dated January 24, 2005,” Remand
Det. at 2, and for February, 2005, that “[t]he invoices for
processing and postage for the February newsletter are dated
February 18, 2005.” Id.
Ct. No. 05-00419 Page 9
States Sec’y of Labor, 17 CIT 126, 130, 814 F.Supp. 1111, 1115
(1993) (ordering the Secretary of Labor to certify a group of
workers when despite multiple remands, the agency “repeatedly
ignored the Court's instructions to conduct a more thorough
investigation”); Former Employees of Sun Apparel v. United States
Sec’y of Labor, 28 CIT __, __, Slip. Op. 04-106 at 15 (Aug. 20,
2004); Anderson v. United States Sec’y of Agriculture, 30 CIT at
__, 429 F. Supp. 2d at 1353.
In fact, the government chose to ignore conflicting evidence:
namely, the Truong affidavit, which the government declined to
enter into the record. In the affidavit, Mrs. Truong states that
“[d]uring the period [between November, 2004 and March, 2005], I
was not contacted or informed, by the [United States Department of
Agriculture] or its agents, or otherwise made aware that the
[United States Department of Agriculture] had recertified Texas
shrimpers for Trade Adjustment Assistance for the marketing year
2003.” Truong Aff. at ¶6. Further investigation was warranted. See
Anderson, 429 F. Supp. 2d at 1355-56 (discussing agency’s duty to
investigate contradictory and inconsistent information); see also
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) (evidence
supporting an agency’s position must be “viewed in the light that
the record in its entirety furnishes,” including contradictory
evidence).
The government further argues that notwithstanding the
Ct. No. 05-00419 Page 10
uncertain reliability of the address list, “it is reasonable to
conclude that actual notice was mailed based upon the allowable
assumption that the County Executive Director properly performed
her duty of providing notice.” Def.’s Resp. Ct.’s Supp. Q. 2
(citation omitted). However, nothing on the record shows that the
Secretary’s determination that Mrs. Truong was mailed notice was
based on an assumption that the Executive Director properly
performed her duty of providing notice. Rather, this argument is
a post-hoc rationalization for Agency action, and as such, cannot
stand. See Anderson v. United States Sec'y of Agric., 30 CIT __,
__, 462 F. Supp. 2d 1333, 1341 (2006) (quoting SEC v. Chenery
Corp., 332 U.S. 194, 196 (1947)). Furthermore, to reason that
agency officials are presumed to perform their duties and that
therefore Mrs. Truong was properly notified is mere ipsedixitism,
not the factual findings that this court directed the government to
make. See Truong, 30 CIT __, Slip. Op. 06-150.
B. The Secretary’s Determination that Mrs. Truong had Actual Notice
of Benefits is not Supported by Substantial Evidence
The Secretary also determined on remand that Mrs. Truong had
actual notice of the TAA program based on the fact that she had
“prepared multiple applications during the few lulls that fishermen
have while they are out to sea.” Remand Det. at 3, quoting P.’s
Opp. Mem. 3. Here again, the government chose not to acknowledge
or weigh conflicting information. The government focused on
Ct. No. 05-00419 Page 11
arguments Plaintiff made before the court, but did not consider the
Truong Affidavit, which explains that between November, 2004 and
March, 2005, “I had in my possession multiple copies of the
application for Trade Adjustment Assistance, which I completed at
that time in anticipation of filing them upon returning permanently
to land and finding out the period for filing those applications
with the [United States Department of Agriculture]”. Truong
Aff. ¶7. One possible interpretation of these statements is that
Mrs. Truong did not have notice, but was diligently preparing her
application in anticipation of receiving it. Because the
government did not enter Mrs. Truong’s affidavit in the record, it
made no determination of the weight to give to this evidence.
Although agencies have “considerable discretion” in
investigations of TAA claims, they still must meet the threshold of
reasonable inquiry discussed in section A, supra, Former Employees
of Hawkins Oil & Gas, Inc., 814 F.Supp. at 1115, and the Secretary
must consider contradictory evidence, see Former Employees of Barry
Callebaut v. Herman, 25 CIT 1226, 1235, 177 F. Supp. 2d 1304, 1313
(2001) (ordering Labor to verify employer’s sworn statements in the
face of contradictory evidence) (rev’d on other grounds at Former
Employees of Barry Callebaut v. Herman, 357 F.3d 1377 (Fed. Cir.
2004)); see also Former Employees of Kleinerts, Inc. v. Herman, 23
CIT 647, 654, 74 F. Supp. 2d 1280, 1288 (1999) (finding it
inappropriate to rely on unverified statements from company
Ct. No. 05-00419 Page 12
officials when factual discrepancies exist in record); see also
Universal Camera Corp., 340 U.S. at 488 (entirety of evidence must
be reviewed). Here, the government did not meet the required
threshold when it refused to consider Mrs. Truong’s contradictory
evidence.
C. The Secretary’s Determination that Mrs. Truong failed to show
Due Diligence in Pursuing her Benefits is not Supported by
Substantial Evidence
When originally remanding this matter to the agency, this
court stated that “[i]f the FSA has failed to properly discharge
its statutory duty, then it is certainly understandable why a
person would remain justifiably ignorant of his or her claim.”
Truong, 30 CIT at __, Slip. Op. 06-150, 12-13. The court has
already found that the Secretary’s determinations as to whether the
government discharged its statutory duty to notify Mrs. Truong of
her benefits is not supported by substantial evidence. Therefore,
the government’s rejection of Mrs. Truong’s due diligence claim
must also fail. The court once again notes that Mrs. Truong’s
affidavit gives some evidence of diligence in pursuing her
benefits. Truong Aff. ¶7. On remand, it is appropriate for the
Secretary to weigh that evidence when making factual findings.
CONCLUSION
For the foregoing reasons, the court remands this matter for
further consideration consistent with this opinion. The government
Ct. No. 05-00419 Page 13
shall have until May 4, 2007, to provide a remand determination.
Plaintiff shall submit comments on the government’s remand
determination no later than May 25, 2007, and the government shall
submit rebuttal comments no later than June 11, 2007. The
government’s motion to dismiss is denied. SO ORDERED.
Dated: April 4, 2007
New York, N.Y.
/s/ Donald C. Pogue___
Donald C. Pogue, Judge