Truong v. U.S. Sec'Y of Agri.

• Citation: 461 F.Supp.2d 1349
• Decision Date: 12 October 2006
• Docket Number: Slip Op. 06-150. Court No. 05-00419.
• Parties: Kyong TRUONG, Plaintiff, v. UNITED STATES SEC'Y OF AGRICULTURE, Defendant.
• Court: U.S. Court of International Trade

461 F.Supp.2d 1349

Kyong TRUONG, Plaintiff, v. UNITED STATES SEC'Y OF AGRICULTURE, Defendant.

Slip Op. 06-150. Court No. 05-00419.

United States Court of International Trade.

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 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 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., ___ 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, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) ("Generally speaking, a court of appeals should 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., 427 F.Supp.2d at 1175; Ingman v. U.S. Sec'y of Agric., 29 CIT ___, ___, 2005 WL 2138576, Slip Op. 05-119 at 11 (CIT Sept. 2, 2005).³ Nevertheless, the government claims that Mrs. 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 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, ___ U.S. ___, 126 S.Ct. 2378, 2385, 165 L.Ed.2d 368 (2006) (quoting United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (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, 126 S.Ct. at 2380-81 (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, 2005 WL 2138576, *___, Slip Op. 05-119 at 8. As such, Mrs. Truong has properly exhausted all the steps the agency held out. Id. at *___, 8.

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, 111 S.Ct. 453, 112 L.Ed.2d 435 (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, 111 S.Ct. 453 (emphasis added). In private suits, the Court continued:

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, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984).

Id. at 96, 111 S.Ct. 453. 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, 104 S.Ct. 1723. 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 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, 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...