O'Toole v. U.S. Secretary of Agriculture

• Decision Date: 23 January 2007
• Docket Number: Slip Op. 07-10. Court No. 04-00660.
• Citation: 471 F.Supp.2d 1323
• Parties: Kevin G. O'TOOLE, Plaintiff, v. U.S. SECRETARY OF AGRICULTURE, Defendant.
• Court: U.S. Court of International Trade

471 F.Supp.2d 1323

Kevin G. O'TOOLE, Plaintiff, v. U.S. SECRETARY OF AGRICULTURE, Defendant.

Slip Op. 07-10. Court No. 04-00660.

United States Court of International Trade.

January 23, 2007.

Munford Page Hall, II and Dorsey & Whitney LLP (Bo-Yong Park), Washington, DC, for Plaintiff.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (John J. Todor and Delfa Castillo); Jeffrey Kahn, Office of the General Counsel, U.S. Department of Agriculture, of Counsel; for Defendant.

OPINION

RIDGWAY, Judge.

In this action, plaintiff Kevin G. O'Toole—a salmon fisherman in Alaska— contests the decision of the U.S. Department of Agriculture ("USDA") denying his application for cash payments and other benefits under the Agricultural Trade Adjustment Assistance ("Ag-TAA") statute on the grounds that he failed to provide documentation establishing that his net fishing income in 2001 exceeded that for 2002. See CAR 1 (Plaintiff's "Application for Trade Adjustment Assistance (TAA) for Individual Producers," stamped by USDA "Received Jan. 20 2004" and "Disapproved Oct 29 2004"); CAR 16 (Letter to Plaintiff from USDA, dated Oct. 29, 2004, notifying, him of denial of his application).¹

Pending More the Court is Plaintiff's Motion to Supplement the Administrative Record, which urges both that O'Toole's federal income tax returns for 2001 and 2002 be added to the record, and that this matter be remanded to USDA for "additional fact finding on the basis of the supplemented agency record and, if necessary, further investigation." See Plaintiff's Supplemental Brief in Support of Plaintiff's Motion to Supplement the Administrative Record ("Pl.'s Supp. Brief") at 13.

O'Toole's principal argument is predicated on his claim that copies of the tax returns at issue were mailed to USDA well in advance of the agency's regulatory deadline. See Affidavit of Kevin G. O'Toole ("Affidavit") ¶ 4. According to O'Toole, under the common law "mailbox rule," timely receipt by the agency is therefore presumed. In the alternative, O'Toole argues that supplementation of the record and remand are warranted because USDA's consideration of his application failed to satisfy applicable standards. See generally Plaintiff's Motion to Supplement, the Administrative Record ("Pl.'s Brief'); Plaintiff's Reply to Defendant's Opposition to the Motion to Supplement the Administrative Record ("Pl.'s Reply Brief'); Pl.'s Supp. Brief; Plaintiffs Supplemental Brief in Response to Defendant's Supplemental Memorandum in Opposition to Plaintiffs Motion to Supplement the Administrative Record ("Pl.'s Supp. Response Brief").

The Government opposes Plaintiffs motion. See generally Defendant's Memorandum in Opposition to Plaintiffs Motion to Supplement the Administrative Record ("Def.'s Brief"); Defendant's Response to Plaintiffs Motion for Leave to File a Reply ("Def.'s Brief in Opp. to Reply"); Defendant's Supplemental Memorandum in Opposition to Plaintiffs Motion to Supplement the Administrative Record ("Def.'s Supp. Brief'); Defendant's Opposition to Plaintiffs Supplemental Brief in Support of Plaintiffs Motion to Supplement the Administrative Record ("Def.'s Supp. Response Brief").

Jurisdiction lies under 19 U.S.C. § 2395 (Supp. IV 2004).² For the reasons set forth below, Plaintiffs Motion to Supplement the Administrative Record is denied, without prejudice.

I. Background

The Agricultural Trade Adjustment Assistance ("Ag-TAA") program is designed to assist eligible farmers and fishermen in adjusting to import competition, by providing technical assistance to all, and by offering certain additional benefits to those facing economic hardship. See generally 19 U.S.C. §§ 2401, 2401a-g (Supp. III 2003)³; USDA Fact Sheet, Trade Adjustment Assistance for Farmers (Aug.2003) ("goal" of Ag-TAA program is "to help producers respond proactively to import competition through training, cash benefits, and employment services").⁴

In October 2003, USDA certified salmon fishermen in Alaska as eligible for trade adjustment assistance for the 2002 market year, based on the stiff competition they were facing from imported frozen salmon fillets. See Trade Adjustment Assistance for Farmers, 68 Fed.Reg. 62,766 (Nov. 6, 2003).⁵ Among those covered by the group certification was plaintiff Kevin G. O'Toole, a salmon fisherman in Cordova, Alaska. O'Toole and all others covered, by the certification were thus eligible to apply for Ag-TAA benefits.

In addition to the free technical assistance to which all applicants are entitled under the Ag-TAA program, applicants who satisfy certain criteria are also entitled to cash payments (known as a "trade adjustment allowance" or as "trade adjustment assistance payments"), as well as "employment services and training benefits" provided through the' U.S. Department of Labor.⁶ To qualify for these additional benefits, an applicant's "net [fishing] income ... for the most recent year" must be "less than the [applicant's] net [fishing] income for the latest year in which no adjustment assistance was received." See 19 U.S.C. § 2401e(a)(1)(C);⁷ see also 7 C.F.R. § 1580.301(e)(4) (requiring certification of decline in net fishing income from that during pre-adjustment year).⁸

O'Toole submitted an Application for Trade Adjustment Assistance (TAA) for Individual Producers (Form FSA-229), which USDA timely received on January 20, 2004. See CAR 1-7; Affidavit ¶ 2. On February 9, 2004, he attended the mandatory technical assistance workshop offered by USDA in Cordova. CAR 8; Affidavit ¶ 5. Then, about a month later, he received a standard form "deficiency letter" from USDA, dated March 10, 2004. See CAR 9.

The USDA's deficiency letter advised O'Toole of the need to supplement his

Form FSA-229 by submitting (1) "2001 Net Income Statement from Accountant or Copy of Schedule C of the IRS 1040, or IRS 1099 Misc." and (2) "2002 Net Income Statement from Accountant or Copy of Schedule C of the IRS 1040, or IRS 1099 Misc.," as well as (3) "Certificate of completing the technical assistance workshop." CAR 9; Affidavit ¶ 3. The letter cautioned that the "REQUESTED INFORMATION MUST BE RECEIVED IN [USDA's] ALASKA STATE OFFICE AS SOON AS POSSIBLE BUT NO LATER THAN SEPTEMBER 30, 2004." Id.

Enclosed with the deficiency letter was a notice captioned "Net Fishing Income Requirements." The notice stated: "Everyone must provide documentation that their net fishing income has declined in 2002, when compared to 2001. This is usually done by providing a copy of one of the following: Individual: Schedule C .... These must be provided for each year, and must show that it is for commercial fishing. If you did not file one of these forms in one, or both of the years, you may provide a statement from your accountant, or attorney as documentation . . . . Failure to provide this documentation by September 30, 2004 will result in your application being disapproved." CAR 10. Neither the deficiency letter nor the enclosed notice directed that the supplemental documentation should be submitted via registered mail, certified mail, or any other specific means of delivery. CAR 9-10; Affidavit ¶ 3.

In his affidavit, O'Toole attests that— "[s]ometime after receiving the March 10 letter, but well before September 30, 2004"—he responded to the deficiency letter via regular U.S. mail, sending USDA both his 2001 and his 2002 tax returns, as well as the required certificate of completion of the agency's technical assistance workshop. Affidavit ¶¶ 4-5 & Exhs. B-D.⁹ He further attests that, "[although [he] do[es] not remember the exact dates when [he] mailed the tax returns and the Certificate," he "remember[s] that [he] mailed the two items separately at the. Cordova Post Office." Affidavit ¶ 6. In the affidavit, O'Toole explains, "Since my wife and I run a real estate agency in Cordova, both of us regularly visit the post office to do mailings." Id.

Although USDA timely received O'Toole's certificate of completion of the technical assistance workshop on March 30, 2004, the agency asserts that no tax returns were ever delivered. See CAR 8 (certificate of completion of technical assistance workshop, stamped by USDA "Received Mar 30 2004"); CAR 1 (notations on agency checklist, indicating receipt of certificate on "3-30-04," and checking "no" in response to question "Has the producer provided supporting documentation verifying that the net farm or net fish income declined from the latest year in which no adjustment assistance payment was received?"). By letter dated October 29, 2004, USDA notified O'Toole that his application had been "disapproved because [he] failed to submit required supporting documentation . . . by September 30, 2004." CAR 13.

On appeal, O'Toole seeks to prove USDA's timely receipt of his tax returns by invoking the "well settled" common law "mailbox rule," which holds that "if a letter properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed . . . that it reached its destination at the regular time, and was received by the person to whom it was addressed." Rosenthal v. Walker, 111 U.S. 185, 193, 4 S.Ct. 382, 28 L.Ed. 395 (1884); see also, e.g., Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct. 417, 76 L.Ed. 861 (1932); 2 Kenneth S. Broun, McCormick on Evidence 502 (Practitioner Treatise Series) (6th ed.2006).

II. Analysis

As a threshold matter, the Government emphasizes that, in Ag-TAA cases such as this, judicial review is confined to the administrative record. See Def.'s Brief at 3 (citations omitted). As the Government concedes, however, the record may be supplemented in certain limited circumstances, such as "when there is a `reasonable basis' to believe that the agency's record of decision is materially incomplete." Def.'s Brief at 6 (citation omitted); Def.'s Supp....