Slip Op. 06-150
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: October 12 ,2006
Williams Mullen (Jimmie V. Reyna and Francisco J. Orellana) for
Plaintiff;1
Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director, Patricia McCarthy, Assistant Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(Elizabeth Thomas, Trial Attorney) for Defendant United States
Secretary of Agriculture.
MEMORANDUM OPINION
Pogue, Judge: On November 30, 2004, the Secretary of Agriculture
(hereinafter, “the Secretary” or “the government”) recertified
Texas shrimpers for trade adjustment assistance under the Trade
Adjustment Assistance Reform Act of 2002, Pub. L. 107-210, Title 1,
Subtitle C, § 141, 116 Stat. 933, 946 (2002), as codified 19
U.S.C. § 2401(e) (West Supp. 2005). See Trade Adjustment
1
The court would like to express its appreciation to
Williams Mullen for representing plaintiff pro bono.
Ct. No. 05-00419 Page 2
Assistance for Farmers, 69 Fed. Reg. 69,582, 69,582 (USDA 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 to qualify for benefits. See id. See generally 19 U.S.C.
§ 2401e(a)(1); 7 C.F.R. § 1580.301(b); 7 C.F.R. § 1580.102.
Plaintiff, Kyong Truong, filed for benefits on March 21, 2005 –
some 21 days after the deadline. Citing the untimeliness of her
application, the United States Department of Agriculture’s Farm
Service Agency ("FSA"), on May 3, 2005, denied Mrs. Truong’s
application.
Mrs. Truong brought suit before the court claiming that the
FSA did not properly provide her notice of the recertification of
benefits as required under 19 U.S.C. § 2401d. Therefore, Mrs.
Truong contends that the filing deadline should be equitably
tolled. Mrs. Truong did not raise an adequacy of notice defense
before the FSA. As such, the FSA has not had an opportunity to
consider this claim.
Before the court are Mrs. Truong’s motion for judgment on the
agency record and the government’s motion to dismiss. For the
reasons set forth below the court remands this matter to the FSA to
consider Mrs. Truong’s claim for equitable tolling and denies the
government’s motion to dismiss.
DISCUSSION
The court must uphold the Secretary's determination unless it
Ct. No. 05-00419 Page 3
is unsupported by substantial evidence on the record or otherwise
not in accordance with law. See 19 U.S.C. § 2395(b).2 See Lady
Kelly, Inc. v. U.S. Sec'y of Agric., 30 CIT ___, ___, 427 F. Supp.
2d 1171, 1176 (2006). There is no exception from this rule when
reviewing an agency decision not to equitably toll its deadline.
See id.; see also Mahmood v. Gonzales, 427 F.3d 248, 252-53 (3rd
Cir. 2005); Singh v. Gonzales, 416 F.3d 1006, 1015 (9th Cir. 2005);
Sprint Commcn’s Co. v. FCC, 76 F.3d 1221, 1226 (D.C. Cir. 1996);
Hill v. U.S. Dep’t of Labor, 65 F.3d 1331, 1339 (6th Cir. 1995).
Cf. Johnston v. Office of Pers. Mgmt., 413 F.3d 1339, 1343 (Fed.
Cir. 2005) (holding that, under a theory of waiver, whether
claimant received sufficient notice so as to excuse a late filing
must be resolved by the agency). Accordingly, where, as here, the
agency has not had the opportunity to consider a question, the
court’s review is limited. See generally INS v. Ventura, 537 U.S.
12, 16 (2002) (“Generally speaking, a court of appeals should
2
That provision provides:
The findings of fact by the Secretary of Labor, the
Secretary of Commerce, or the Secretary of Agriculture,
as the case may be, if supported by substantial evidence,
shall be conclusive; but the court, for good cause shown,
may remand the case to such Secretary to take further
evidence, and such Secretary may thereupon make new or
modified findings of fact and may modify his previous
action, and shall certify to the court the record of the
further proceedings. Such new or modified findings of
fact shall likewise be conclusive if supported by
substantial evidence.
Ct. No. 05-00419 Page 4
remand a case to an agency for decision of a matter that statutes
place primarily in agency hands.”). The court may only resolve the
matter itself if “the outcome is clear as a matter of law.”
Mahmood, 427 F.3d at 253.
In accordance with the court’s prior decisions, the government
has conceded (for purposes of this motion) that the deadline
specified in 19 U.S.C. § 2401e is subject to equitable tolling.
See Lady Kelly, Inc., 30 CIT at ___, 427 F. Supp. 2d at 1175;
Ingman v. U.S. Sec'y of Agric., 29 CIT ___, ___, Slip Op. 05-119 at
11 (Sept. 2, 2005).3 Nevertheless, the government claims that Mrs.
3
The government claims that there exists tension between the
Court of Appeals for the Federal Circuit’s decisions in
Autoalliance Int'l, Inc. v. United States, 357 F.3d 1290, 1294
(Fed. Cir. 2004) (rejecting tolling of 2636(a) because “[i]n
suits against the United States, jurisdictional statutory
requirements cannot be waived or subjected to excuse or remedy
based on equitable principles.” (quoting Mitsubishi Elecs. Am,
Inc. v. United States, 18 CIT 929, 932, 865 F. Supp. 877, 880
(1994)), and Former Employees of Sonoco Prods. Co. v Chao, 372
F.3d 1291, 1298 (Fed Cir. 2004) (finding claims for equitable
tolling valid under 2636(d), although ultimately finding the
claim unmeritorious). The Federal Circuit adheres to the rule
that a prior precedent governs unless and until it is overturned
en banc or by the Supreme Court. See, e.g., El-Shifa Pharm.
Indus. Co. v. United States, 378 F.3d 1346, 1352 (Fed. Cir.
2004). As such, even though the language in Autoalliance Int’l
appears clearly irreconcilable with Irwin v. Dep't of Veterans
Affairs, 498 U.S. 89 (1990), because Autoalliance Int’l was
decided prior to Former Employees of Sonoco Prods Co., it must
prevail. With that said, it is not clear to the court that the
cited language from Autoalliance Int’l was intended to sweep so
broadly. Moreover, Autoalliance Int’l involved a plaintiff
missing the court’s filing deadline; in contrast, Mrs. Truong
missed the agency’s filing deadline. Only the former could
implicate the court’s subject matter jurisdiction. See Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393-94 (1984)
(continued...)
Ct. No. 05-00419 Page 5
Truong’s assertion of equitable tolling is insufficient as a matter
of law and fact.
A. EXHAUSTION
Before proceeding with the substantive analysis, the court
must decide the threshold issue of exhaustion. Here, Mrs. Truong
is contesting a final determination of the FSA denying benefits; as
noted above, this determination is reviewable under 19 U.S.C. §
2395(a).
However, besides timely contesting a reviewable determination,
the court’s founding statute also requires that “[i]n any civil
action not specified in this section, the Court of International
Trade shall, where appropriate, require the exhaustion of
administrative remedies.” 28 U.S.C. § 2637(d) (2000) (emphasis
added).4 This exhaustion requirement mandates that “courts should
3
(...continued)
(distinguishing agency filing deadlines from jurisdictional
deadlines and noting that the former was subject to “waiver,
estoppel, and equitable tolling”). Because even a broad reading
of Autoalliance Int’l would not apply to non-jurisdictional
statutory requirements, the court finds equitable tolling
permissible under Irwin v. Dep't of Veterans Affairs, 498 U.S.
89, 95 (1990).
4
The FSA has not challenged this requirement here.
Therefore, unless construed as a jurisdictional requirement, this
claim may be waived. See United States v. Priority Prods., Inc.,
793 F.2d 296, 300 (Fed. Cir. 1986) (“Exhaustion of administrative
remedies is not strictly speaking a jurisdictional requirement
and hence the court may waive that requirement and reach the
merits of the complaint.”); cf. Mathews v. Eldridge, 424 U.S.
(continued...)
Ct. No. 05-00419 Page 6
not topple over administrative decisions unless the administrative
body not only has erred, but has erred against the objection made
at the time appropriate under its practice. Woodford v. Ngo, 548
U.S. ___, No. 05-416, Slip Op. at 8 (June 22, 2006) (quoting United
States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952))
(emphasis in original). This “requir[es] proper exhaustion of
administrative remedies, which ‘means using all steps that the
agency holds out, and doing so properly (so that the agency
addresses the issues on the merits.)’” Woodford, Slip Op. at 8
(quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002))
(emphasis in original).
Although the equitable tolling claim was not presented to the
FSA, the FSA has not demonstrated that it has a procedure to
consider such claims. Indeed, neither its application form nor its
regulations specify means of asserting an equitable tolling claim.5
See Ingman, 29 CIT at ___, Slip Op. 05-119 at 8. As such, Mrs.
Truong has properly exhausted all the steps the agency held out.
Id. at 8.
4
(...continued)
319, 330 (1976) (finding that a statutory exhaustion requirement
was waiveable). Nonetheless, assuming for the purposes of
argument only that this inquiry is jurisdictional in nature, cf.
Ingman, 29 CIT at ___, Slip Op. 05-119 at 7 n.3, the court
raises this issue sua sponte.
5
This is not to say, however, that the agency could not
invoke it’s regulation at 7 C.F.R. §1580.501 to consider Ms.
Truong’s claim.
Ct. No. 05-00419 Page 7
Because the court finds that Mrs. Truong timely contested a
determination by the FSA within the meaning of 19 U.S.C. § 2395,
and that she properly exhausted available administrative remedies,
the court may consider Mrs. Truong’s claim.
B. ADEQUACY OF LEGAL CLAIM FOR EQUITABLE TOLLING
Mrs. Truong alleges that the Secretary (a) failed to mail
notice of benefits and (b) failed to adequately publish the
availability thereof in a local newspaper. Therefore, Mrs. Truong
claims, the deadline should be tolled. The FSA argues that, even
assuming the FSA did not provide Mrs. Truong notice of the
availability of benefits, Mrs. Truong’s complaint does not
sufficiently allege a basis for equitable tolling. The court
disagrees.
The United States Supreme Court defined the legal contours of
equitable tolling claims against the government in Irwin v. Dep’t
of Veterans Affairs, 498 U.S. 89, 95-96 (1990). Rejecting the
notion that the U.S. government is exempt from equitable tolling
defenses, the Court held that “[o]nce Congress has made such a
waiver [of sovereign immunity], we think that making the rule of
equitable tolling applicable to suits against the Government, in
the same way that it is applicable to private suits, amounts to
little, if any, broadening of the congressional waiver.” Id. at 95
(emphasis added). In private suits, the Court continued:
Ct. No. 05-00419 Page 8
Federal courts have typically extended equitable relief
only sparingly. We have allowed equitable tolling in
situations 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. We have generally
been much less forgiving in receiving late filings where
the claimant failed to exercise due diligence in
preserving his legal rights. Baldwin County Welcome
Center v. Brown, 466 U.S. 147, 151 (1984).
Id. at 96. In this discussion, the Court cited Baldwin County
Welcome Ctr. v. Brown which, itself, provided further examples of
where equitable tolling may be granted.6 Within that list, the
Baldwin Court mentioned cases where “a claimant has received
inadequate notice[.]” Baldwin County Welcome Ctr., 466 U.S. at
151. For this proposition the Court cited the Ninth Circuit’s
decision in Gates v. Georgia-Pac. Corp., 492 F.2d 292 (9th Cir.
1974).
In Gates, the appellee failed to timely appeal a decision of
the Equal Employment Opportunity Commission (“Commission”). Gates,
492 F.2d at 295. The Commission’s regulations required the
Commission to inform interested parties of its decision and to
notify the aggrieved party that he or she had 30 days to contest
that determination in a district court. Although the Commission
6
Contrary to the FSA’s averments, the two examples listed in
Irwin are not the exclusive grounds on which equitable tolling
may be claimed. See Young v. United States, 535 U.S. 43, 50
(2002) (“We have acknowledged, however, that tolling might be
appropriate in other cases” than those recited in Irwin) (citing
Baldwin County Welcome Ctr., 466 U.S. at 151).
Ct. No. 05-00419 Page 9
informed the appellee “that the Commission was closing her case for
lack of jurisdiction, it did not advise [her] that she could
commence an action in the District Court within 30 days.” Id. The
Gates court found that because “of the Commission’s error, appellee
was confused and, under the circumstances, acted with all the
diligence and promptness which could be expected.” Id.
Consequently, the Ninth Circuit sustained appellee’s equitable
tolling claim.
This line of analysis is similar to decisions of the Court of
Appeals for the Federal Circuit excepting claimants from filing
deadlines (albeit not necessarily relying on the doctrine of
equitable tolling). See, e.g., Johnston, 413 F.3d at 1343 (finding
tolling appropriate under a theory of waiver); Brush v. Office of
Pers. Mgmt., 982 F.2d 1554, 1560-61 (Fed. Cir. 1992)(same). See
also Decca Hospitality Furnishings, LLC v. United States, 29 CIT
___, 391 F. Supp. 2d 1298 (2005) (finding that an agency cannot
impose a deadline for which it does not adequately inform parties).
In all these cases courts have concluded that a failure of an
agency to provide notice as required by its governing statutes or
regulations tolled a filing deadline.
That these equitable principles should be applied here is
evidenced by the intent behind the Trade Adjustment Assistance
Reform Act of 2002. Cf. Burnett v. N.Y. Cent. R.R. Co., 380 U.S.
424, 427 (1965) (“the basic inquiry is whether congressional
Ct. No. 05-00419 Page 10
purpose is effectuated by tolling the statute of limitations in a
given circumstance.”). Specifically, 19 U.S.C. § 2401d provides:
(b) Notice of benefits.
(1) In general. The Secretary shall mail written
notice of the benefits available under this chapter [19
U.S.C. §§ 2401 et seq.] to each agricultural commodity
producer that the Secretary has reason to believe is
covered by a certification made under this chapter [19
U.S.C. §§ 2401 et seq.].
(2) Other notice. The Secretary shall publish notice
of the benefits available under this chapter [19 U.S.C.
§§ 2401 et seq.] to agricultural commodity producers that
are covered by each certification made under this chapter
[19 U.S.C. §§ 2401 et seq.] in newspapers of general
circulation in the areas in which such producers reside.
Section 2401d expresses a Congressional determination that
agriculture commodity producers need assistance in learning about
their eligibility for benefits above that which would otherwise be
required. See S. Rep. 107-134 (“Section 296 requires the Secretary
of Agriculture to make outreach efforts in order to assure that
eligible agricultural producers are given an opportunity to apply
for and receive benefits under this title.”). Cf. 19 U.S.C. §
2401b(b) (requiring publication of certification in the Federal
Register); accord Guangzhou Maria Yee Furnishings, Ltd. v. United
States, 29 CIT ___, 412 F. Supp. 2d 1301, 1306 (2005) (finding that
agency regulations requiring notice could not be ignored because
those requirements furthered substantial interests). This
protection would be rendered nugatory if the court were to find that
a failure to provide notice was insufficient to toll the filing
deadline.
Ct. No. 05-00419 Page 11
To be sure, equitable tolling is not available any time a party
fails to receive notice that is due. See, e.g., Irwin, 498 U.S.
at 95-96 (rejecting such a claim); Ingman, 29 CIT at ___, Slip Op.
05-119 at 11 (dismissing equitable tolling claim where lack of
notice was not attributed to agency error); cf. Jones v. Flowers,
546 U.S. ___, No. 04-1477, Slip Op. at 9 (2006) (the adequacy of “a
particular notice procedure is assessed ex ante, not post hoc”);
Dusenbery v. United States, 534 U.S. 161, 170 (2002) (noting that
actual receipt of notice is not necessary to satisfy Due Process).
Rather, "[e]quitable tolling focuses primarily on the plaintiff's
excusable ignorance of the limitations period." Lehman v. United
States, 154 F.3d 1010, 1016 (9th Cir. 1998)(emphasis in original);
accord Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.
1990) (Posner, J.). Nonetheless, where, as here, the Defendant has
an obligation to provide Plaintiff notice of the existence of his
or her claim, and has failed to do so, equitable tolling may be
appropriate. Accord Former Employees of Sonoco Prods. Co., 372 F.3d
at 1299-1300 (“Appellants cannot now blame Fail's late filing on a
government agency that was unaware of Fail's intention to appeal or
of her need to be made aware of the decision in a timely manner.”).
The court is also satisfied that Mrs. Truong has alleged the
requisite level of diligence. Whether premised on (1) radiations
from the Due Process Clause of the United States Constitution, see
e.g., Stieberger v. Apfel, 134 F.3d 37, 40 (2d Cir. 1997); cf.
Ct. No. 05-00419 Page 12
Vargas-Garcia v. INS, 287 F.3d 882, 886 (9th Cir. 2002); (2) the
fact that statutory or regulatory notice requirements evidence a
legislative judgment regarding what may be reasonably expected or
required of claimants, see e.g., Johnston, 413 F.3d at 1342;
Guangzhou Maria Yee Furnishings, Ltd., 29 CIT at ___, 412 F. Supp.
2d at 1306; or (3) the understanding that claimants may reasonably
rely on agencies to discharge their duties, see, e.g., City of New
York v. N.Y., N. H. & Hartford R. Co., 344 U.S. 293, 297 (1953);
Decca Hospitality Furnishings, LLC, 29 CIT at ___, 391 F. Supp. 2d
at 1314-16, courts have generally found excusable ignorance results
where a defendant fails to provide the plaintiff proper notice of
his or her claim, see, e.g., Griffin v. Rogers, 399 F.3d 626, 637
(6th Cir. 2005) (holding tolling applied where claimant provided
inadequate notice); Veltri v. Bldg. Serv. 32B-J Pension Fund, 393
F.3d 318, 325-26 (2d Cir. 2004) (finding inadequate notice tolled
deadline where party did not have actual notice of the deadline);
Gates, 492 F.2d at 292. Accord Jones, 546 U.S. at ___, No.
04-1477, Slip Op. at 11 (rejecting inquiry notice defense); Decca
Hospitality Furnishings, LLC, 29 CIT at ___, 391 F. Supp. 2d at
1314-16 (same).7 If the FSA has failed to properly discharge its
7
The FSA has not alleged any prejudice to itself as a result
of Mrs. Truong’s late filing. Cf. Baldwin County Welcome Center,
466 U.S. at 152 ("[a]lthough absence of prejudice is a factor to
be considered in determining whether the doctrine of equitable
tolling should apply once a factor that might justify such
tolling is identified, it is not an independent basis for
(continued...)
Ct. No. 05-00419 Page 13
statutory duty, then it is certainly understandable why a person
would remain justifiably ignorant of his or her claim.
Therefore, as alleged, the court finds that Mrs. Truong does
state a case for equitable tolling.
B) INSUFFICIENCY OF FACTUAL CLAIM
The government argues that, even assuming the above analysis,
Mrs. Truong has failed to satisfy her burden in showing the
propriety of equitable tolling. Specifically, the government
contends that (a) the FSA did comply with section 2401d by sending
Mrs. Truong a letter informing her of the recertification, (b) that
she had actual notice of the recertification, and (c) that she
failed to allege due diligence after receiving actual notice. The
record, however, is silent regarding any factual findings by the
agency on these questions. As these questions are, at the very
least, mixed questions of law and fact, the court will not weigh in
on these questions without first ascertaining the FSA’s views. Cf.
Johnston, 413 F.3d at 1343 (remanding to agency for further fact-
finding on whether notice was provided); Bayer v. U.S. Dep’t of
Treasury, 956 F.2d 330, 333-35 (D.C. Cir. 1992) (same).
CONCLUSION
For the foregoing reasons, the court remands this matter for
7
(...continued)
invoking the doctrine. . . .").
Ct. No. 05-00419 Page 14
further consideration consistent with this opinion. The government
shall have until November 13, 2006, to provide a remand
determination. Plaintiff shall submit comments on the government’s
remand determination no later than December 4, 2006, and the
government shall submit rebuttal comments no later than December
26, 2006. The government’s motion to dismiss is denied.
SO ORDERED.
Dated: October 12, 2006
New York, N.Y.
/s/ Donald C. Pogue
Donald C. Pogue, Judge