Slip Op. 06-25
UNITED STATES COURT OF INTERNATIONAL TRADE
LADY KELLY, INC.,
Plaintiff, Before: Richard W. Goldberg,
Senior Judge
v.
Court No. 05-00480
UNITED STATES SECRETARY OF
AGRICULTURE,
Defendant.
OPINION
[Defendant’s motion to dismiss is denied. Defendant’s motion
for judgment on the agency record under USCIT R. 56.1 is
granted.]
Dated: February 24, 2006
R. Michael Patrick, for plaintiff Lady Kelly, Inc.
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
(Michael James Dierberg), for defendant United States Secretary
of Agriculture.
GOLDBERG, Senior Judge: Defendant United States Secretary of
Agriculture (“Defendant” or “USDA”) moves the Court to dismiss
Plaintiff Lady Kelly, Inc.’s (“Plaintiff”) complaint, under
USCIT R. 12(b)(5), for failure to state a claim upon which
relief may be granted. Defendant also moves in the alternative
for judgment on the agency record under USCIT R. 56.1. For the
reasons that follow, Defendant’s motion to dismiss is denied,
Court No. 05-00480 Page 2
and Defendant’s motion for judgment on the agency record is
granted.
I. BACKGROUND
Plaintiff is a corporation engaged in the shrimping
business in Georgia. The Foreign Agriculture Service of the
USDA recertified a petition for trade adjustment assistance
(“TAA”) filed by the Georgia Shrimp Association (“GSA”) on
behalf of Georgia shrimpers for the fiscal year 2005. See Trade
Adjustment Assistance for Farmers, 69 Fed. Reg. 68,303 (Dep’t of
Agric. Nov. 24, 2004). The effective date of the
recertification was November 29, 2004. See id. The notice was
promptly published in the Federal Register, and instructed
potential applicants that “[s]hrimpers who land their catch in
Georgia will be eligible to apply for fiscal year 2005 benefits
during a 90-day period beginning on November 29, 2004. The
application period closes on February 28, 2005.” Id.
Plaintiff filed an application that was received by the
USDA’s Wayne County Farm Service Agency office on June 9, 2005,
more than 180 days after the date of recertification. On July
21, 2005, Defendant informed Plaintiff that its application for
benefits had been denied because it failed to file within the
statutorily prescribed ninety-day window, which had expired on
February 28, 2005. On August 17, 2005, Plaintiff commenced
proceedings in this Court, invoking the Court’s jurisdiction
Court No. 05-00480 Page 3
under 28 U.S.C. § 1581(d), and contending that the application
was in fact mailed on January 8, 2005, in light of which the
Court should equitably toll the ninety-day window.
Plaintiff asserts that it mailed a completed application on
January 8, 2005, one day after it received the application form
from GSA. Plaintiff further alleges that in March 2005, its
owner contacted the relevant Farm Service Agency county office
to inquire about the status of its application. Plaintiff has
also introduced evidence in the form of a photocopied envelope,
with a handwritten note documenting the mailing date of the
alleged January 8, 2005 application.1
On November 4, 2005, Defendant filed a motion to dismiss,
or, in the alternative, for judgment based on the agency record
under USCIT R. 56.1. Both motions draw on the same facts to
bolster the case for dismissal or entry of judgment on the
agency record, respectively: namely, Defendant denied Plaintiff
access to TAA benefits because Plaintiff’s application was late,
and Plaintiff had not adduced sufficient evidence to demonstrate
that equitable tolling was appropriate. Plaintiff insists that
it is entitled to equitable relief in this case. The Court has
1
The envelope at issue is addressed from GSA to Stewart Sadler,
Plaintiff’s shareholder. The Court presumes that the envelope
contained GSA’s notification to Plaintiff of the
recertification, as well as an application form. Plaintiff did
not introduce a copy of the envelope it used to mail its
application to the USDA.
Court No. 05-00480 Page 4
jurisdiction over the claim under 19 U.S.C. § 2395(a).2 Accord
Ingman v. U.S. Dep’t of Agric., 29 CIT ___, ___, Slip Op. 05-119
at 5-7 (Sept. 2, 2005).
II. DISCUSSION
Defendant moves the Court to dismiss for failure to state a
claim upon which relief may be granted, and for judgment on the
agency record. The Court will address each defense separately.
A. Failure to State a Claim
In ruling on a motion to dismiss for failure to state a
claim, a court reviews the sufficiency of the complaint,
assuming all alleged facts to be true, and drawing all factual
inferences in the plaintiff’s failure, to determine if any set
of circumstances would entitle the plaintiff to the relief it
2
Plaintiff’s invocation of 28 U.S.C. § 1581(d) is misplaced.
That section grants the U.S. Court of International Trade
(“CIT”) jurisdiction of disputes over certain plaintiffs’
“eligibility” for TAA benefits. See 28 U.S.C. § 1581(d)(1)-(3)
(1999). Notably, 28 U.S.C. § 1581(d) does not mention
“agricultural commodity producers,” a recently created class of
beneficiaries that includes Plaintiff. Rather, “agricultural
commodity producers” may challenge the USDA’s eligibility
determination by recourse to 19 U.S.C. § 2395(a), which allows
such plaintiffs to challenge a “determination of the Secretary
of Agriculture under section 2401b of this title[.]” 19 U.S.C.
§ 2395(a) (2005). Congress added the language in that statute
dealing with agricultural commodity producers when it passed the
Trade Act of 2002, see Pub. L. 107-210, 116 Stat. 933, 953
(2002). Therefore, the CIT has subject matter jurisdiction over
USDA TAA cases under 19 U.S.C. § 2395, despite the absence of a
corollary amendment to 28 U.S.C. § 1581(d) giving the CIT
jurisdiction over eligibility disputes brought by agricultural
commodity plaintiffs.
Court No. 05-00480 Page 5
seeks. See Scheuer v. Rhodes 416 U.S. 232, 236 (1974),
overruled on other grounds, Davis v. Scherer, 468 U.S. 183
(1984); Adams v. United States, 391 F.3d 1212, 1218 (Fed. Cir.
2004); Amoco Oil Co. v. United States, 23 CIT 613, 613, 63 F.
Supp. 2d 1332, 1334-35 (1999).
Defendant’s argument has two interdependent prongs: first,
Plaintiff did not file its application within the ninety-day
window provided by 19 U.S.C. § 2401e(a)(1); and second, the
complaint fails to state a claim for equitable tolling. The
first prong is uncontroversial. Plaintiff does not dispute that
Defendant first received the TAA application on June 9, 2005.
Since eligibility for the adjustment assistance disbursed
pursuant to 19 U.S.C. § 2401e is conditioned on an “adversely
affected agricultural commodity producer” filing a TAA
application within ninety days of the date of certification, see
19 U.S.C. § 2401e(a)(1), Plaintiff’s application was received
more than three months after the statutory ninety-day period had
passed, and was untimely.
The second prong, however, is contested. Equitable
tolling, which allows courts to disregard non-compliance with
statutes of limitations or deadlines under certain circumstances
where equity demands, is presumptively available with respect to
statutes of limitations for filing suits against the government.
See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96
Court No. 05-00480 Page 6
(1990). Congress may at any time choose to preclude equitable
tolling with respect to a statute, and render the statutory
terms of its waiver of sovereign immunity exhaustive, but in
such a case a defendant government agency must adduce evidence
that such Congressional intent existed in order to rebut the
presumption of availability. See United States v. Brockamp, 519
U.S. 347, 350 (1997) (examining “Irwin’s negatively phrased
question: Is there good reason to believe that Congress did not
want the equitable tolling doctrine to apply?”); Irwin, 498 U.S.
at 95.
Defendant has produced no such evidence. Previous court
decisions have repeatedly allowed equitable tolling in TAA
cases. See, e.g., Former Employees of Sonoco Prods. Co. v.
Chao, 372 F.3d 1291, 1296-98 (Fed. Cir. 2004) (holding sixty-day
time limit for filing suit in labor TAA cases may be equitably
tolled); Former Employees of Quality Fabricating, Inc. v. U.S.
Sec. of Labor, 27 CIT ___, ___, 259 F. Supp. 2d 1282, 1285-86
(2003) (equitably tolling the statute of limitations in TAA case
where Department of Labor made misrepresentations to plaintiff
about how she was to obtain notice of final determination);
Former Employees of Siemens Info. Comm. Networks, Inc. v.
Herman, 24 CIT 1201, 1208, 120 F. Supp. 2d. 1107, 1113 (2000)
(“Finally, the relevant legislative history fails to disclose
any intent on the part of Congress to prohibit equitable
Court No. 05-00480 Page 7
tolling. Indeed, the remedial purpose of the trade adjustment
assistance program supports the conclusion that equitable
tolling is available in this context.”) (citation omitted).
The Court notes that the precise issue in this case is one
of first impression in the CIT. No court has ruled on whether
equitable tolling is available with respect to an applicant’s
failure to comply with 19 U.S.C. § 2401e(a)(1)’s ninety-day
statutory deadline. The previous cases have all addressed the
availability of equitable tolling in instances where plaintiffs
have failed to commence a case in the CIT within sixty days of
the reviewable determination as required by 19 U.S.C. § 2395(a).
See 19 U.S.C. § 2395(a) (2005) (“[A plaintiff] 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.”). However, the Court sees no reason why
this distinction should occasion a different application of the
equitable tolling standards. The language and structure of 19
U.S.C. § 2401e are not suggestive of any Congressional intent to
limit the equitable tolling doctrine. Statutes of limitations
that are not susceptible to equitable tolling, such as 19 U.S.C.
§ 1514, are characterized by forceful language that reinforces
the exclusionary properties of the limitation. See, e.g., U.S.
JVC Corp. v. United States, 22 CIT 687, 694-95, 15 F. Supp. 2d
906, 913-14 (1998) (holding equitable tolling of 19 U.S.C. §
Court No. 05-00480 Page 8
1514’s ninety-day statute of limitations was inappropriate
because that statute provided that absent protests, decisions by
Customs Service were “final and conclusive”). Section 2401e, by
contrast, contains no such language.
Moreover, the doctrine of equitable tolling is not limited
to cases where a party fails to commence a timely case before
courts. Administrative deadlines, like statutes of limitations,
are susceptible to equitable tolling. See, e.g., Mahmood v.
Gonzalez, 427 F.3d 248, 251 (3d Cir. 2005) (8 U.S.C. § 1229a’s
deadline for filing a motion to reopen with an immigration judge
is subject to equitable tolling); Commc’ns Vending Corp. of
Arizona, Inc. v. FCC, 365 F.3d 1064, 1075 (D.C. Cir. 2004) (47
U.S.C. § 415(a)’s two-year deadline for certain actions before
the Federal Communications Commission may be equitably tolled);
Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363,
1367-68 (D.C. Cir. 1998) (42 U.S.C. § 2000e-5(e)(1)’s
requirement that a plaintiff file an administrative complaint
with Equal Employment Opportunity Commission within 180 days of
alleged unlawful practice may be equitably tolled).
Finally, Defendant seems to agree that equitable tolling is
at least available in such a case; its motion to dismiss never
impugns its discretion to toll the ninety-day window, and
instead focuses on whether exercising such discretion in this
case would have been appropriate. As such, the Court holds that
Court No. 05-00480 Page 9
equitable tolling of the ninety-day statutory deadline contained
in 19 U.S.C. § 2401e(a)(1) is available in appropriate
circumstances.
Whereas equitable tolling is available with respect to the
TAA program, it is only granted sparingly out of deference to
Congress’ decision to establish a deadline in the first place.
The exception must not swallow the rule, even in the TAA context
where Congress has erected an administrative regime to disburse
benefits to a class of sympathetic plaintiffs with relatively
little sophistication in matters of federal litigation.
As a general matter, equitable tolling is available only
where a plaintiff “has actively pursued his judicial remedies by
filing a defective pleading during the statutory period, or when
the complainant has been induced or tricked by his adversary’s
misconduct into allowing the filing deadline to pass.” Irwin,
498 U.S. at 96. In other words, equitable tolling may be
appropriate where a plaintiff has “exercise[d] due diligence in
preserving his legal rights.” Id.; see also Brandenburg v.
Principi, 371 F.3d 1362, 1364 (Fed. Cir. 2004). Representative
examples of a plaintiff’s due diligence include the timely
filing of a correct complaint in the wrong court, see Burnett v.
N.Y. Cent. R.R. Co., 380 U.S. 424, 429-30 (1965), or the filing
of a defective notice of appeal, see Santana-Venegas v.
Principi, 314 F.3d 1293, 1298 (Fed. Cir. 2002).
Court No. 05-00480 Page 10
Here, Plaintiff alleges that it mailed a completed
application on January 8, 2005, one day after it received the
application form from GSA. Plaintiff has also introduced
evidence to that effect. Plaintiff further alleges that in
March 2005, its representative contacted the relevant Farm
Service Agency county office to inquire about its application.
Assuming all Plaintiff’s allegations as true, and drawing
all favorable inferences from those facts, the Court finds that
Plaintiff has stated a claim upon which relief may be granted.
If a plaintiff may be entitled to equitable tolling when it
files a defective pleading, or when it inappropriately files a
motion for federal relief in state court, it would be
inequitable to erect an insuperable bar to such relief in cases
where a plaintiff addresses the correct forms to the correct
recipient, mails them, but, through no fault of plaintiff’s, the
forms never arrive. Defendant’s motion to dismiss must
therefore be denied.
B. Judgment on the Agency Record
As noted above, this case presents an equitable tolling
issue of first impression. Here, the relevant statutory
deadline limits applicants’ access to TAA benefits, and has
nothing to do with a plaintiff’s ability to obtain judicial
review. The deadline operates at the agency level. As such,
the USDA has already considered the evidence in favor of
Court No. 05-00480 Page 11
equitable tolling at the agency level. The Court’s jurisdiction
under 19 U.S.C. § 2395 is limited to judicial review of the
“determination” that Plaintiff had filed its application out of
time, and that equitable tolling was not appropriate in this
case.
In a TAA proceeding, this Court will uphold the USDA’s
factual findings that are supported by “substantial evidence.”
See 19 U.S.C. § 2395(b) (2005). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938). Because the USDA’s decision not to toll the
statutory deadline appears to have rested on its determination
that Plaintiff did not exercise due diligence in pursuing its
rights, the challenged “determination,” 19 U.S.C. § 2395(a), is
a “factual finding” that will be upheld if “substantial
evidence” underlies it, id. § 2395(b). See Former Employees of
Siemens, 24 CIT at 1208, 120 F. Supp. 2d at 1114 (“Whether a
plaintiff has acted with due diligence is a fact-specific
inquiry, guided by reference to the hypothetical reasonable
person.”); cf. Commn’cs Vending Corp., 365 F.3d at 1075 (D.C.
Circuit upholding the Federal Communications Commission
determination not to equitably toll 47 U.S.C. § 415(a) because
agency’s finding that plaintiff had not exercised due diligence
was supported by substantial evidence).
Court No. 05-00480 Page 12
In this case, the absence of any compelling evidence that
Plaintiff pursued its rights with due diligence led to the
USDA’s factual finding that equitable tolling was inappropriate.
The Court is unable to say that the existence of a photocopy of
an envelope with handwritten annotations relating to the crucial
events in this action3 is sufficiently forceful evidence as to
place the USDA’s conclusion outside the boundaries of
reasonableness. If Plaintiff had shown the USDA a certified
mail receipt or registered mail receipt, the Court’s conclusions
would likely be different. However, the USDA acts well within
the bounds of reasonableness when it refuses to equitably toll a
statutory deadline on the basis of a self-serving photocopy that
an applicant presents. Indeed, to rule otherwise would open a
loophole in the TAA regime whereby any applicant that allows the
ninety-day time period to lapse could, provided it produces a
similar photocopied envelope, obtain access to guaranteed
benefits at a later date. The current ruling recognizes that
postal errors do, on occasion, occur, but also encourages future
3
After surveying Plaintiff’s summons, complaint, and response
to Defendant’s motions, it is unclear whether Plaintiff ever
presented the envelope to the USDA personnel reviewing the
untimely application. If the USDA never saw the envelope, then
it was not part of the agency record that the Court is currently
reviewing. Because it makes no difference to the ultimate
disposition of the Rule 56.1 motion, the Court will assume such
evidence was available to the USDA personnel, and explain why
even with such evidence, the USDA’s actions are unassailable on
judicial review.
Court No. 05-00480 Page 13
applicants to document those errors by sending their
applications via certified or registered mail. Defendant’s
motion for judgment on the agency record is granted.
III. CONCLUSIONS
For the foregoing reasons, Defendant’s motion to dismiss is
denied, and Defendant’s motion for judgment on the agency record
is granted. An order will be issued dismissing Plaintiff’s
case.
/s/ Richard W. Goldberg
Richard W. Goldberg
Senior Judge
Date: February 24, 2006
New York, NY