Van Trinh v. U.S. Secretary of Agr.

• Decision Date: 29 August 2005
• Docket Number: Slip Op. 05-111.,Court No. 04-00632.
• Citation: 395 F.Supp.2d 1259
• Parties: Tao VAN TRINH, Plaintiff, v. UNITED STATES SECRETARY OF AGRICULTURE, Defendant.
• Court: U.S. Court of International Trade

395 F.Supp.2d 1259

Tao VAN TRINH, Plaintiff, v. UNITED STATES SECRETARY OF AGRICULTURE, Defendant.

Slip Op. 05-111.

Court No. 04-00632.

United States Court of International Trade.

August 29, 2005.

Barnes, Richardson & Colburn (Lawrence M. Friedman, Louisa Vassileva Carney, and Nikolay A. Ouzounov), Chicago, IL, for plaintiff.

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 (David S. Silverbrand); Jeffrey Kahn, Office of General Counsel, Department of Agriculture, for the defendant, of counsel.

OPINION

RESTANI, Chief Judge:

This matter is before the court on the plaintiff Tao Van Trinh's ("Trinh") motion for judgment on the agency record pursuant to United States Court of International Trade Rule 56.1. At issue is the United States Secretary of Agriculture's ("Secretary," "Agriculture," or "Department") determination denying Trinh's application for Trade Adjustment Assistance ("TAA").

Trinh alleges that the Secretary's determination was not based on a "legally complete set of facts," Pl.'s Br. at 2, i.e., it did not include Trinh's amended tax return after he had discovered an inaccuracy in his original 2002 Individual Income Tax Return. Thus, Trinh asserts that the Secretary's final determination denying his application for TAA was unwarranted by the facts and, as a result, could not have been made in accordance with law or supported by substantial evidence. Accordingly, Trinh asks the court to grant his motion for judgment on the agency record or, in the alternative, to remand this determination, for "good cause" shown, to the Secretary for reconsideration of his eligibility for TAA cash benefits.

The Secretary of Agriculture claims that Trinh is not eligible for TAA cash benefits because he failed to meet all the statutory criteria for TAA eligibility — particularly that Trinh failed to file verifiable documentation, within the specified regulatory time frame, demonstrating a decline in net fishing income from 2001 to 2002. The Secretary further maintains that due to this documentation failure, Agriculture's determination was supported by substantial evidence on the record and otherwise in accordance with law, and consequently, the Secretary asks the court to deny Trinh's motion for judgment on the agency record, affirm Agriculture's determination, and enter judgment for the defendant, dismissing this case. The court remands.

FACTUAL & PROCEDURAL BACKGROUND

Trinh, a shrimp boat operator, resides in Palacios, Texas. On December 11, 2003, subsequent to the November 19, 2003 FAS certification of Texas shrimp producers' eligibility for TAA benefits,¹ Trinh submitted a TAA application for individual producers through the Department's local Matagorda County Farm Service Agency ("FSA") Office. Application For Trade Adjustment Assistance (TAA) for Individual Producers, Pl.'s App. 8 [hereinafter TAA Application].

On the same date, pursuant to TAA Application requirements,² Trinh also submitted his 2001 and 2002 tax returns, a farm operating plan, see Farm Operating Plan for Payment Eligibility Review for an Individual, Pl.'s App. 9 [hereinafter Farm Operating Plan], and an HELC and WC certification. See Highly Erodible Land Conservation (HELC) & Wetland Conservation (WC) Certification, Pl.'s App. 10. Trinh satisfied the TAA requirement of proof of technical assistance by receiving training and technical assistance on January 27, 2004, in Palacios, Texas. See Trade Adjustment Assistance — Technical Assistance Certification Form, Pl.'s App. 11; TAA Application, Pl.'s App. 8.³

Trinh next received a letter from the Matagorda County FSA Committee, dated April 28, 2004, stating that it had determined, based on a review of his previously submitted farm operating plan, that Trinh was "one `person' for payment limitation purposes, separate and distinct from any entity or any other individual." Letter from USDA Matagorda County FSA Office to Trinh (Apr. 28, 2004), Pl.'s App. 12. Approximately four months later, Trinh received a letter dated August 16, 2004, again from the Matagorda County FSA Committee, denying his application for TAA benefits and stating that "[t]he Income Taxes [he] provided did not support the certification requirement to be eligible for TAA payment." Letter from USDA Matagorda County FSA Office to Trinh (Aug. 16, 2004), Pl.'s App. 13 [hereinafter FSA Determination] (requiring net fishing income for 2002 to have been less than 2001 net fishing income). While the FSA's letter stated that the issue "is not appealable," it also advised Trinh that he could seek review of the appealability determination by writing to the National Appeals Division ("NAD") Director within thirty calendar days of the letter's date,⁴ explaining why he thought the issue was appealable. Id.

Trinh timely submitted a letter to NAD, dated August 14, 2004, but postmarked September 15, 2004, requesting an appeal. Letter to NAD (postmarked Sept. 15, 2004), Pl.'s App. 14; see also NAD Timeliness Worksheet (Sept. 20, 2004), Pl.'s App. 15 (showing timely postmark of appealability/appeal request). Although his letter to NAD is somewhat confusing, Trinh explained that, "[d]ue to low shrimp price[s]" for 2002, his 2002 income was less than his 2001 income, despite "work[ing] more and bring[ing] in more poundage." Letter from Trinh to NAD (dated Aug. 14, 2004), Pl.'s App. 16. Because of these factors, Trinh stated that he "still ha[d] less income" in 2002, despite any contrary indication from his tax returns, and tried to explain that "bigger repairs on the boat in 2001... is why [his] net imcome [sic] for 2002 is higher than 2001, but only by 58.00."⁵ Id.

In response to his NAD appeal letter, Trinh received a response letter from NAD, dated September 30, 2004, stating that "[t]he Agency decision is appealable because it is adverse to you as an individual participant." Letter from USDA NAD Office to Trinh (Sept. 30, 2004), at 1, Pl.'s App. 17⁶ (citing 7 C.F.R. § 1580.505⁷ for authorization to obtain reconsideration and review of determinations made in accordance with appeal regulations at 7 C.F.R. § 780.7(e), which "provides that nothing in this part prohibits a participant from filing an appeal ... with NAD in accordance with the NAD regulations").⁸ Accordingly, Trinh received a letter from NAD, dated October 6, 2004, constituting a notice of appeal and request for the agency record and assigning a Hearing Officer to the appeal. USDA Notice of Appeal & Req. for Agency R. (Oct. 6, 2004), at 1, Pl.'s App. 18 (stating that Trinh "may submit additional information... by October 25, 2004" (nearly a month after the September 30 regulatory deadline)). Additionally, in a letter from NAD dated October 26, 2004, Trinh received notice that a prehearing conference had been scheduled, pursuant to 7 C.F.R. § 11.8. USDA Notice of Prehearing Conference (Oct. 26, 2004), at 1, Pl.'s App. 19.

A few days later, however, Trinh received a letter from NAD, dated October 28, 2004 (two days after the date of NAD's previous letter that had specified the prehearing conference information), informing him that his "NAD appeal is moot and any further NAD processing of [his] appeal should cease." Letter from USDA NAD Office to Trinh (Oct. 28, 2004), at 1, Pl.'s App. 20 [hereinafter NAD Determination]. Furthermore, according to the letter, the NAD appeal was moot because the Department's Texas State FSA Office informed NAD that it was "withdrawing [the Matagorda County] FSA's adverse decision." Id. The letter did not, however, specify the reason for the withdrawal of the adverse decision, the consequences the withdrawal would have on his appeal, or the Department's next steps.⁹ It merely advised Trinh that if he did not want the NAD appeal to be dismissed, he could write to the NAD-appointed Hearing Officer within five days and tell him why the case should not be dismissed.¹⁰ See NAD Determination, Pl.'s App. 20.

On November 23, 2004, Agriculture's Foreign Agricultural Service ("FAS") denied Trinh's application for TAA benefits. See Letter from USDA FAS Office to Trinh (Nov. 23, 2004), at 1, Pl.'s App. 21. According to the letter, "[t]he Farm Service Agency (FSA)¹¹ has withdrawn its initial disapproval of [Trinh's] application and referred it to the FAS for a final determination of [his] eligibility." Id. (emphasis added). The letter also stated that "FAS reviewed the information that [Trinh] provided in [his] application" and "disapproved" him for the 2002 Texas shrimp TAA cash benefit because his "net fishing income for 2002 did not decline from 2001, the pre-adjustment year." Id. Moreover, the letter stated that it was the "final FAS disapproval of [Trinh's] application" and that "FAS will disregard any appeal ... already made to FSA or to the [NAD] because FAS makes the final decision regarding [Trinh's] application." Id. The letter also advised Trinh that he could request judicial review of the final, negative FAS determination by contacting the United States Court of International Trade within sixty days. Id.

On December 6, 2004, Trinh filed an Amended Individual Income Tax Return for 2002, "because he discovered additional boat repair receipts which had been inadvertently left off his 2002 Tax Return." Pl.'s Br. at 6. Compare Profit/Loss, Pl.'s App. 1 (listing $2,369 for repairs and maintenance in original 2002 Schedule C (Form 1040)), with Form 1040X: Amended U.S. Individual Income Tax Return and Schedule C (Form 1040) 2002: Profit or Loss From Business — Amended, Pl.'s App. 22 [hereinafter Amended 2002 Tax Return] (listing $2,607 for repairs and maintenance in both the "Form 1040X, Part II: Explanation of Changes to Income, Deductions, and Credits," and on the amended 2002 Schedule C (Form 1040)). Thus, relative to the 2001 amounts, the amended 2002 values represent an adjusted gross income decline of $165,...