MEMORANDUM and ORDER
Plaintiff commenced this action on July 18, 2011, to contest the United States Department of Agriculture’s (“USDA”) denial of Plaintiffs 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,
I. Discussion
Plaintiff carries “the burden of demonstrating that jurisdiction exists.”
Techsnabexport, Ltd. v. United States,
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,
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 Plaintiffs letter to be deemed filed when received on July 18, 2011. See USCIT R. 5(d)(4). Had it been sent via certified mail (return receipt requested) on July 12, 2011, Plaintiffs 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, Plaintiffs 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.
See
29 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,
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).
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,
[A]ny challenge to the USDA’s determination must be brought within 60 days of receiving notice of that determination. 19 U.S.C. § 2395(a). In this case, Conlin admits it received notice of USDA’s denial of its petition on October 3, 2006. PI. Br. 6.
Br. in Supp. of Def.’s Mot. to Dismiss and Resp. to Pis.’ Mot. for J. upon the Agency
Plaintiff wishes to take
Conlin
one step further, arguing that “The plain language [of the statute] means that a denied applicant has sixty days from the date the applicant receives actual notice of the denial from the [USDA], usually in the form of a letter.” Pl.’s Resp. to Def.’s Mot. to Dismiss at 4, ECF No. 17. This goes too far. As
Kelley
held, Congress was not that specific about the manner and type of notice the agencies must provide.
See Kelley,
As explained above, Kelley clarifies that the agencies administering the TAA program have a measure of gap-filling discretion to define the type and manner of notice provided to applicants. Along with that discretion comes the flexibility to change position. In this action USDA has changed its litigating position, now asserting that the date of the letter triggers an applicant’s 60-day period to seek judicial review. Counsel for USDA explains a number of advantages to using the letter date as the trigger, albeit through post hoc rationalizations not provided in USDA’s otherwise unadorned application of 19 U.S.C. § 2395. According to counsel, the date of the letter is fixed by objective and visible standards, is easy to determine, is ascertainable by both parties, and is easily applied. Def.’s Reply in Supp. of Mot. to Dismiss at 5-6. Most of this is true, but ease of application depends on whether the notice was mailed contemporaneously with the date of the letter, as well as when the applicant received the letter. As the facts of Conlin demonstrate, the letter date may prove arbitrary (as applied) by significantly truncating an applicant’s 60-day period, an occurrence in Conlin that prompted even USDA to acknowledge that receipt date was proper, at least in that instance.
The date of the letter is a suitable starting point for analyzing the sixty-day deadline, but it does not establish, as USDA envisions, a conclusive trigger for the sixty-day period. In most cases it may resolve the issue of whether suit was timely commenced, but an applicant may nevertheless allege that the date of the letter (as applied) arbitrarily truncates the applicant’s sixty-day period, either because the notice was not mailed contemporaneously with the date of the letter (Conlin), or the applicant received the notice on a date beyond what would otherwise be a reasonable time for mailing. The onus, however, is on the applicant to make the allegation, and if necessary (e.g., defendant challenges the allegation), proffer and prove the date of mailing (via the envelope’s postmark), receipt (via affidavit or testimony), or both, like the applicant in Conlin.
USDA, of course, enjoys a general presumption of regularity that official duty has been performed.
See Butler v. Principi
Given that Defendant’s 12(b)(1) motion to dismiss does not controvert Plaintiffs allegation of receipt, the court must assume that factual allegation to be true.
See Cedars-Sinai Medical Center v. Watkins,
The letter date may well resolve most issues involving the timely commencement of suit, especially when USDA mails the notice contemporaneously with its date, and the notice is received within five days. The hope though is that as USDA eventually moves toward electronic notice, the issues of mailing, delay, and receipt will prove to be, with this opinion, quaint relics of a simpler time.
B. Motion to Dismiss Pursuant to USCIT R. 12(b)(5)
Together with its USCIT Rule 12(b)(1) motion, Defendant also filed a motion to dismiss Plaintiffs complaint pursuant to USCIT Rule 12(b)(5) for failure to state a claim upon which relief may be granted. Defendant’s memorandum in support of its Rule 12(b)(5) motion, Plaintiffs response, and Defendant’s reply each focus heavily on the merits of Plaintiffs TAA application. Plaintiff, though, has only had one brief to the government’s two. The court would like to hear further from Plaintiff on the merits of its claim and accordingly, will convert Defendant’s motion to dismiss pursuant to USCIT Rule 12(b)(5) to a motion for judgment on the agency record pursuant to USCIT Rule 56.1.
See, e.g., Ngu
II. Conclusion
For the foregoing reasons, it is hereby
ORDERED that Defendant’s motion to dismiss pursuant to USCIT Rule 12(b)(1) is denied; it is further
ORDERED that Defendant’s motion to dismiss pursuant to USCIT Rule 12(b)(5) is converted to a motion for judgment on the agency record pursuant to USCIT Rule 56.1; and it is further
ORDERED that the court will schedule a conference with the parties to discuss the further disposition of this action.