Carl v. U.S. Sec'y of Agric.

• Decision Date: 24 May 2012
• Citation: 839 F.Supp.2d 1351,34 ITRD 1523
• Parties: Steve M. CARL, Plaintiff, v. UNITED STATES SECRETARY OF AGRICULTURE, Defendant.
• Court: U.S. Court of International Trade

839 F.Supp.2d 1351

34 ITRD 1523

Steve M. CARL, Plaintiff,

v.UNITED STATES SECRETARY OF AGRICULTURE, Defendant.

United States Court of International Trade.

Slip Op. 12–66.

Court No. 11–00271.

May 24, 2012.

Steve M. Carl, Pro Se, of Georgetown, SC. With him on the brief was Steve D. Schwinn, The John Marshall Law School, of Chicago, Illinois.

Antonia R. Soares, Trial Attorney, International Trade Field Office, Commercial Litigation Branch, Civil Division, of Washington, DC. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director. Of counsel on the brief was Jeffrey Kahn, Office of the General Counsel, U.S. Department of Agriculture, of Washington, D.C.

MEMORANDUM and ORDER

GORDON, Judge:

Plaintiff commenced this action on July 18, 2011, to contest the United States Department of Agriculture's (“USDA”) denial of Plaintiff's application for Fiscal Year 2010 benefits under the Trade Adjustment Assistance (“TAA”) for Farmers Program, Section 296 of the Trade Act of 1974, as amended, 19 U.S.C. § 2401e (2006).¹ Jurisdiction is predicated on 28 U.S.C. § 1581(d)(4) (2006). Defendant moves to dismiss pursuant to USCIT Rule 12(b)(1) for lack of subject matter jurisdiction, contending that Plaintiff failed to timely commence its action “within sixty days after notice” of the denial. 19 U.S.C. § 2395; see also Kelley v. Dept. of Labor, 812 F.2d 1378, 1380 (Fed.Cir.1987) (holding sixty-day period is jurisdictional); Conlin Greenhouses v. U.S. Secretary of Agriculture, 32 CIT 467, 2008 WL 2104739 (2008) (dismissing TAA action not filed within sixty days for lack of jurisdiction). Defendant has also moved pursuant to USCIT Rule 12(b)(5) to dismiss Plaintiff's complaint for failure to state a claim upon which relief may be granted. For the reasons set forth below, Defendant's motions are denied.

I. Discussion

Plaintiff carries “the burden of demonstrating that jurisdiction exists.” Techsnabexport, Ltd. v. United States, 16 CIT 420, 422, 795 F.Supp. 428, 432 (1992) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). In deciding a USCIT Rule 12(b)(1) motion to dismiss that does not challenge the factual basis for the complainant's allegations, and when deciding a USCIT Rule 12(b)(5) motion to dismiss for failure to state a claim upon which relief may be granted, the court assumes all factual allegations to be true and draws all reasonable inferences in plaintiff's favor. See Cedars—Sinai Med. Ctr. v. Watkins, 11 F.3d 1573, 1583–84 & n. 13 (Fed.Cir.1993); Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995) (subject matter jurisdiction); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991) (failure to state a claim).

A. Subject Matter Jurisdiction

The statute provides that an action challenging the denial of TAA benefits must be commenced “within sixty days after notice” of the denial. 19 U.S.C. § 2395. The sixty-day period is jurisdictional. Kelley, 812 F.2d at 1380. As such, the court's 5–day service-by-mail extension, USCIT R. 6(d), does not apply. See generally, 4B Charles Alan Wright, Arthur R. Miller, Mary Kay Kane & Richard L. Marcus, Federal Prac. & Proc. § 1171 (3d ed. 2012) (“the [service-by-mail extension] has been held not to extend the time permitted for obtaining review of administrative decisions when the decision has been mailed, on the theory that the statutory time elements for review are mandatory and jurisdictional.”).

USDA notified Plaintiff of the denial of benefits in a letter dated May 13, 2011, which also informed Plaintiff of his right to request judicial review:

You may request judicial review of this determination within sixty (60) days of this letter by submitting a request for judicial review via certified mail (return receipt requested) to Clerk's Office, U.S. Court of International Trade, One Federal Plaza, New York, New York 10278–0001. The Office of the Clerk can provide instructions for requesting a judicial review and may be reached at (212) 264–2800. You can also visit the Court's website ... for more information.

Compl. Ex. USDA denial letter (May 13, 2011) (“TAA Denial”). There is nothing in the record indicating when USDA mailed the denial letter to Plaintiff. Plaintiff avers in its amended complaint that it received the letter sometime after May 19, 2011. To commence this action Plaintiff mailed a letter to the court dated July 12, 2012, but not via certified mail (return receipt requested). That omission caused Plaintiff's letter to be deemed filed when received on July 18, 2011. SeeUSCIT R. 5(d)(4). Had it been sent via certified mail (return receipt requested) on July 12, 2011, Plaintiff's letter would have been deemed filed when mailed. Id.

+-------------------------------------+
                ¦Event  ¦Date        ¦60–Day Deadline ¦
                +-------+------------+----------------¦
                ¦Letter ¦May 13, 2011¦July 12, 2011   ¦
                +-------+------------+----------------¦
                ¦Mailing¦?           ¦?               ¦
                +-------+------------+----------------¦
                ¦Receipt¦May 19, 2012¦July 18, 2011   ¦
                +-------------------------------------+
                

As the table indicates, Plaintiff's July 18th filing is untimely if measured from the date of the letter, but timely if measured from date of receipt. To identify the appropriate trigger for the 60–day period, the court begins with the Federal Circuit's decision in Kelley. In Kelley the Federal Circuit addressed the notice requirement of 19 U.S.C. § 2395 when reviewing a TAA decision by the U.S. Department of Labor (“Labor”). Labor had promulgated a regulation that triggered the 60–day period with publication of its TAA determination in the Federal Register. See29 C.F.R. § 90.19. That regulation authorizes Labor to provide constructive notice of its decisions via the Federal Register to the group of workers (three or more) that had applied for TAA. The trial court determined that the constructive notice provision was reasonable, but invalidated the regulation as applied to pro se TAA applicants because the court was concerned about the unfairness of requiring them to comb through the Federal Register when the agency had demonstrated that it was not honoring the deadlines for decision-making. Kelley v. U.S. Dept. of Labor, 9 CIT 646, 648, 626 F.Supp. 398, 400 (1985) (“Congress could not have intended a pro se party to constantly search the Federal Register for the final determination of the Secretary of Labor for months beyond the sixty days within which such determination is due under the statute.”).

The Federal Circuit reversed:

There is no hint in the Trade Act that actual notice is necessary to start the sixty-day limitation period, and utilization of notice in the Federal Register as the triggering event is consistent with the language and structure of the Act....

Here, the trial court acknowledged that the Secretary's interpretation of section 2395(a) is reasonable, but made an exception for pro se litigants.... [T]he lack of specificity in the statute with respect to the notice requirement does not evidence that Congress intended the result the court reached. Nor does it open the way for the court to overturn the Secretary's regulation as unreasonable. The pro se status of appellants does not remove them from the general rule on constructive notice, 29 C.F.R. § 90.19(a).Kelley, 812 F.2d at 1380. A couple of important lessons emerge from this decision: First, the TAA notice provision lacks specificity about the type and manner of notice required, meaning that Congress left gaps for the agencies to fill, and second, Labor's gap-filling regulation establishing constructive notice via the Federal Register was reasonable. In this case the first is instructive (although USDA has never rendered a thorough interpretation of the notice provision); the second is irrelevant, at least for USDA, which does not have procedures for providing constructive notice to applicants.

Without a constructive notice mechanism, USDA must provide actual notice to the applicant. USDA, however, seems unsure of its own processes, suggesting that Kelley relieves USDA of the burden of providing actual notice. See Def.'s Reply in Supp. of Mot. to Dismiss at 4, ECF No. 24 (Mar. 22, 2012). This suggestion is puzzling, however, because USDA has no alternative to actual notice (as Labor does with its publication in the Federal Register). At present there is no means for USDA to provide, or TAA applicants to receive, constructive notice of a denial of benefits. Therefore, actual notice it is.

The critical issue here does not turn on constructive vs. actual notice, but instead on what triggers the 60–day period. When does it begin to run for USDA TAA applicants? Unlike Labor's regulation, which has a clear trigger for the 60–day period—the notice publication date in the Federal Register—USDA's regulation says nothing about the 60–day period, simply referencing the Court's Rules: “Any producer aggrieved by a final agency determination under this part may appeal to the U.S. Court of International Trade for a review of such determination in accordance with its rules and procedures.” 7 C.F.R. § 1580.506.

As explained above, USDA notified Plaintiff of the denial of benefits in a letter dated May 13, 2011, which also notified Plaintiff that he may request judicial review “within sixty (60) days of this letter....” Compl. Ex. USDA denial letter (May 13, 2011) (“TAA Denial”). The phrase—“of this letter”—represents a slight change for USDA, which previously advised applicants of their right to seek judicial review within 60 days “ ‘ from the date of this letter.’ ” Conlin, 32 CIT at 467, n. 2 (quoting TAA denial letter) (emphasis added); Alaniz v. U.S. Secretary of Agriculture, 30 CIT 1782, 1785, 2006 WL 3326776 (2006) (quoting TAA denial letter) (emphasis added). More important than USDA's change of language is its somewhat jarring change in litigating position from Conlin to ...