                              SLIP OP. 05-119

            UNITED STATES COURT OF INTERNATIONAL TRADE


ROGER L. INGMAN,

                Plaintiff,              Before: Jane A. Restani,
                                                Chief Judge
           v.

UNITED STATES SECRETARY OF              Court No. 05-00268
AGRICULTURE,

                Defendant.




                                    OPINION

[Defendant’s motion to dismiss suit challenging Trade Adjustment
Assistance for Farmers benefits denial granted.]

                                                Dated: September 2, 2005

      Roger L. Ingman, pro se 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
(Delfa Castillo); Jeffrey Kahn, of counsel, Office of General
Counsel, Department of Agriculture, for the defendant.

           Restani, Chief Judge: This matter is before the court on

the   government’s   motion    to    dismiss.   Plaintiff   Roger   Ingman,

appearing pro se, has orally opposed the motion.

                 FACTUAL AND PROCEDURAL BACKGROUND

           Ingman operated a licensed fishing operation in Alaska

during the 2003 salmon season.        AR at 3–4.   On October 7, 2004, the

United States Department of Agriculture (“USDA”) announced           via a

press release that it was recertifying a petition for Alaska salmon
Court No. 05-00268                                                         Page 2

fisherman under the Trade Adjustment Assistance for Farmers program

(“TAA”).     See Press Release 0228-04, “USDA Grants Assistance to

Alaska Salmon Fishermen Under Trade Adjustment Assistance Program”

(October 7, 2004) [hereinafter Press Release 0228-04], available

at, http://www.fas.usda.gov/scriptsw/PressRelease/pressrel_frm.asp.

The USDA determined that increasing imports of farmed salmon

contributed to a decline in the price of salmon in Alaska during

the 2003 marketing period. Id.         Thus, affected Alaska fisherman

could apply for technical assistance and cash benefit for the 2005

salmon season.     See id.     The press release announced that “Alaska

salmon license and permit holders seeking assistance must apply

between October 15, 2004, and January           13, 2005.”    Id.

             Subsequently, the USDA published a notice on this subject

in the Federal Register. See Trade Adjustment For Farmers, 69 Fed.

Reg. 60,350 (Dep’t Agric. Oct. 8, 2004).           In the notice, the USDA

announced that “Salmon fisherman holding permits and licenses in

the State of Alaska will be eligible for fiscal year 2005 benefits

during   a   90-day   period   beginning   on    October   15,     2004.     The

application period closes on January 13, 2005.”1             Id.    The notice


     1
       This is in accordance with 19 U.S.C. § 2401e(a)(1)
(2004), which reads:

             Payment of[a] adjustment assistance under this
             chapter [19 USCS §§ 2401 et seq.] shall be made
             to an adversely affected agricultural commodity
             producer covered by a certification under this
             chapter [19 USCS §§ 2401 et seq.] who files an
Court No. 05-00268                                            Page 3

then went on to give the appropriate contact information.        Id.

This information was also posted on the USDA’s website.     AR at 18.

In addition, various other advertisements of benefit-availability

were published in Alaska during the relevant period.      See Letter

from U.S. Dep’t of Justice (Aug. 10, 2005), Attach. 1, 2, 4, 5.

            Although Ingman was eligible to apply for TAA benefits,

the USDA received his application on January 28, 2005, 15 days

after the announced deadline.     AR at 3.    Ingman admits that his

application was late, stating in his letter of appeal that he “was

unable to meet the deadline of January 13, 2005.”        Letter from

Ingman (March 9, 2005), AR at 16.    In a letter dated March 1, 2005,

the USDA denied Ingman’s application because it was not received by

the January 13, 2005, deadline.     Letter from USDA (March 1, 2005),

AR at 17.   Despite his tardiness in filing, Ingman argues that the

deadline should be tolled.      See Letter from Ingman, AR at 16.

Ingman alleges that his tardiness was the result of the USDA

sending his application to the incorrect address, and offers the

USDA’s original letter as proof. Id. at 16–18.2


            application for such assistance...
     2
      A conference with plaintiff and subsequent correspondence
from the government (not contradicted by plaintiff) has confirmed
that the application Ingman received was sent three months prior
to the deadline to his daughter’s address—-an address that
Ingman had used in the past. In addition, Ingman had received
benefits previously and presumably was personally familiar with
the program through such receipt of benefits, as well as through
the wide-spread advertising of the program.
Court No. 05-00268                                                             Page 4

            The    Government         moves    to   dismiss   based    on     lack   of

jurisdiction and failure to state a claim.                    For the reasons set

forth below, the government’s motion is granted.

                                 I.     JURISDICTION

            Pursuant to 19 U.S.C. § 2395, the Court of International

Trade has exclusive jurisdiction over any action commenced to

review a final determination of the Secretary of Agriculture with

respect    to   denial     of    trade    adjustment     assistance.         The   USDA

challenges subject matter jurisdiction under this provision on two

grounds:    (A)    the     Secretary      of    Agriculture      did   not    make   a

determination reviewable by this court; and (B) Ingman did not

exhaust his administrative remedies.

            The determination of subject matter jurisdiction is a

threshold inquiry.         Steel Co. v. Citizens For A Better Env’t, 523

U.S. 83, 94–95 (1998).           Whether to grant a motion to dismiss for

want of jurisdiction is a question of law.                    JCM, Ltd. v. United

States, 210 F.3d 1357, 1359 (Fed. Cir. 2000).

            “The party seeking to invoke this Court's jurisdiction

bears the burden of proving the requisite jurisdictional facts.”

Former Employees of Sonoco Prods. Co. v. United States Sec’y of

Labor, 273 F. Supp. 2d 1336, 1338 (CIT 2003), aff’d, 372 F.3d 1291

(Fed. Cir. 2004), reh’g en banc denied, No. 03-1557, 2004 U.S. App.

LEXIS   20715     (Sept.    8,    2004)       (citing   McNutt    v.   Gen.    Motors

Acceptance Corp., 298 U.S. 178, 189 (1936)).                     At the same time,
Court No. 05-00268                                                    Page 5

“the Court assumes ‘all well-pled factual allegations are true,’

construing     ‘all     reasonable    interferences     in   favor   of   the

nonmovant.’” United States v. Islip, 22 CIT 852, 854, 18 F. Supp.

2d 1047, 1051 (1998) (quoting Gould, Inc. v. United States, 935

F.2d 1271, 1274 (Fed. Cir. 1991)).

A.    The Secretary Of Agriculture Made A Reviewable Determination.

             First, the USDA argues that no reviewable determination

was   made   by   the   Secretary    of   Agriculture   (“the   Secretary”).

Section 2395 of title 19 of the United States Code reads in

pertinent part as follows:

      [A]n agricultural commodity producer (as defined in
      section 2401(2) of this title) aggrieved by a
      determination of the Secretary of Agriculture under
      section 2401b of this title . . . may, within sixty
      days after notice of such determination, commence a
      civil   action  in   the   United  States   Court   of
      International Trade for review of such determination.

             . . . .

           . . . The Court of International Trade shall have
      jurisdiction to affirm the action of . . . the
      Secretary of Agriculture, as the case may be, or set
      such action aside, in whole or in part.

19 U.S.C. § 2395 (2004) (a) & (c) (emphasis added).

             The USDA argues that 19 U.S.C. § 2395 grants the Court of

International Trade jurisdiction to review only “determinations” of

the Secretary, and when it denied Ingman’s application because of

his untimely submission, it made no such determination.               Def.’s

Mot. To Dismiss at 6.       The USDA argues that the Secretary merely
Court No. 05-00268                                                                     Page 6

applied    19    U.S.C.     §    2401e(a)(1),         which    allows         submission    of

applications for only ninety days after he certifies eligibility,

and thus the Secretary made no reviewable determination.                              Id.

            In its March 1, 2005, letter, the USDA admitted to Ingman

that it had “reviewed the information that [Ingman] provided to the

Farm Service Agency with [his] application and . . . made a final

determination that [he was] ineligible for a cash payment.”                               AR at

17 (emphasis added).            Furthermore, the USDA wrote that Ingman “may

request review of [the] final determination by contacting the

United States Court of International Trade . . . .”                           Id. (emphasis

added).     It was not until its Motion to Dismiss that the USDA

denied that it had made a determination.

            Yet, even absent this admission, the distinction the USDA

draws     between    a    determination             based   on     a     deadline     and     a

determination       based       on   other      characteristics          is    both   without

precedent and unconvincing.                  To prohibit judicial review of an

agency’s application of deadlines to TAA applications would leave

applicants with no method of appeal even in the face of clear

agency error.       The USDA offers no explanation as to why this, and

not other       agency    determinations,            deserves      absolute        deference.

Therefore, as the Court of International Trade is given exclusive

jurisdiction      over      final      determinations         of       the    Secretary     of

Agriculture      regarding           TAA    applications,          and       the   USDA     has

characterized       its   actions          as   a   final     determination,          without
Court No. 05-00268                                             Page 7

offering any plausible reason why they are not, this court finds

that it has subject matter jurisdiction.

B.   Ingman Exhausted His Administrative Remedies.

          Second, the USDA argues that Ingman did not exhaust his

administrative remedies.3   28 U.S.C. § 2637(d) (2000) states 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.”

          “The exhaustion doctrine requires a party to present its

claims to the relevant administrative agency for the agency’s

consideration before raising these claims to the Court.” Fabrique

de Fer de Charleroi S.A. v. United States, 25 CIT 741, 743, 155 F.

Supp. 2d 801, 805 (2001); see also Unemployment Comp. Comm’n of

Alaska v. Aragon, 329 U.S. 143, 155 (1946) (“A reviewing court

usurps the agency’s function when it sets aside the administrative

determination upon a ground not theretofore presented and deprives

the [agency] of an opportunity to consider the matter, make its

ruling, and state the reasons for its action”).         A plaintiff's

administrative remedies are exhausted once an agency issues its

final negative determination denying his petition and allowing him

to pursue judicial review in the Court of International Trade under


     3
       It is not clear that this ground actually goes to subject
matter jurisdiction rather than failure to state a claim. The
court sees no reason to explore this issue, as plaintiff has
exhausted his remedies.
Court No. 05-00268                                                  Page 8

19 U.S.C. § 2395(a).       See Former Employees of Quality Fabricating,

Inc. v. Dep’t of Labor, 343 F. Supp. 2d 1272, 1282–1283 (CIT 2004)

(finding   that   plaintiffs     had   exhausted    their   administrative

remedies sufficiently to allow judicial review under 19 U.S.C. §

2395(a) when the Department of Labor issued its final negative

determination of their petition for NAFTA TAA benefits).

           In the present case, the USDA argues that agency review

of an application for TAA benefits was available to Ingman had he

submitted his application during the specified period. Def.’s Mot.

to Dismiss at 6–7.     It argues that, because Ingman did not avail

himself of this opportunity by submitting a timely application, he

did not exhaust his administrative remedies, and therefore this

court lacks jurisdiction to hear this case.          Id.

           As previously discussed, the FAS announced in its letter

to Ingman that its determination denying him TAA benefits was

final.   See discussion supra at Part I.A.         Additionally, the USDA

cites no additional procedure for administrative review that Ingman

could pursue. Therefore, the court concludes that Ingman exhausted

his administrative remedies.

                     II.    FAILURE TO STATE A CLAIM

           Alternatively, the USDA argues that pursuant to Rule

12(b)(5) of this court, Ingman has failed to state a claim on which

relief could be granted because he does not allege facts sufficient

to make him eligible to for TAA benefits.          Although Ingman failed
Court No. 05-00268                                           Page 9

to file a formal response to the USDA’s motion to dismiss, the

court interprets Ingman’s position as follows:      Although Ingman

admits he did not meet the statutory deadline for submission of his

application, equity dictates that the deadline should be tolled.

A.   Plaintiff Did Not Meet The Deadline For TAA Benefits.

           The USDA argues that Ingman presents no issue of material

fact.   “On a motion to dismiss for failure to state a claim,

factual allegations made in the complaint are assumed to be true

and all inferences are drawn in favor of the plaintiff.”   Amoco Oil

Co. v. United States, 23 CIT 613, 613, 63 F. Supp. 2d 1332, 1334

(1999); see also Mitchell Arms, Inc. v. United States, 7 F.3d 212,

215 (Fed. Cir. 1993).   “Dismissal is proper only ‘where it appears

beyond doubt that plaintiff can prove no set of facts which would

entitle him to relief.’” Amoco Oil Co., 23 CIT at 613, 63 F. Supp.

2d at 1334 (quoting Constant v. Advanced Micro-Devices, Inc., 848

F.2d 1560, 1565 (Fed. Cir. 1988)).

           The USDA argues that there is no issue of material fact

because Ingman admits to having been unable to meet the January

13th deadline, a prerequisite for the USDA to review an application

for TAA.   The USDA made a similar argument before this court in

Deane v. United States Sec’y of Agric., No. 05-0020 (CIT May 17,

2005) (unpublished order) (dismissing complaint with prejudice).

In Deane, as here, the plaintiff was an Alaska fisherman seeking

review of a negative final determination by the USDA on his
Court No. 05-00268                                                             Page 10

application for TAA benefits.              See Deane, Def.’s Mot. to Dismiss

(March   19,    2005),     at   4.       The   USDA   received    the    plaintiff’s

application for TAA benefits on May 17, 2004, almost five months

after the announced January 20, 2004 deadline.                   Id.    Although the

plaintiff      alleged that he already completed an application with

another government agency, which was lost, he offered no proof of

that fact.      See Deane, Pl.’s Resp. (Apr. 23, 2005).                   This court

granted the USDA’s motion to dismiss.                 See Deane, Order (May 17,

2005).

              Similarly, in the present case, Ingman admits in his

letter of appeal that he did not meet the January 13th deadline.

He does not challenge that deadline in any way.

B.    Equitable Tolling Is Not Appropriate.

              Ingman presumably argues that as                 his tardiness was a

result of the USDA’s error in sending his application to the

incorrect address, equity dictates that the court toll the deadline

set   forth    in    19   U.S.C.     §   2401e(a)(1)     for    submission     of   his

application.        The   Supreme    Court     has    extended    the    doctrine    of

equitable tolling to statutes of limitations for filing suits

against the government.            See   Irwin v. Dep’t of Veterans Affairs,

498 U.S. 89, 95–96 (1990).

              In Irwin, the Court held that “the same rebuttable

presumption     of    equitable      tolling    applicable       to    suits   against

private defendants should also apply to suits against the United
Court No. 05-00268                                                       Page 11

States.” Id. Nonetheless, “[e]quitable tolling is not permissible

where it is inconsistent with the text of the relevant statute.”

United States v. Beggerly, 524 U.S. 38, 48 (1998).              Applying this

standard, the court has found that equitable tolling is permitted

under   the    TAA     statute.      See   Former   Employees       of   Quality

Fabricating, Inc. v. United States, 259 F. Supp. 2d 1282 (CIT 2003)

(denying defendant’s motion to dismiss where plaintiff missed the

deadline for appealing a negative determination by the Department

of Labor on her request for TAA because the agency published the

determination only in the federal register and not on its website,

where it had told her to look).

          In the present case, however, there is no evidence that

USDA misled Ingman or that he used “due diligence” in either

determining the existence of his claim or procuring an application.

In Quality Fabricating, the court found the plaintiff acted with

due diligence because the Department of Labor instructed employees

that they could refer to its website or the Federal Register.                 Id.

at 1286–87. Because the plaintiff regularly checked the Department

of Labor’s website and the Department of Labor failed to post her

status there,        the   court   permitted   tolling   of   the   statute   of

limitations.    Id.

          Conversely, Ingman does not allege that he made a similar

effort to ascertain his status as a potential recipient of TAA

benefits or that he took steps to procure an application.                In the
Court No. 05-00268                                           Page 12

Federal Register, the USDA provided both an email address and a

phone number for applicants to request information, see Trade

Adjustment for Farmers, 69 Fed. Reg. at 60,350, and in its press

release, the USDA provided web addresses where applicants could

obtain local contact information and the actual application, see

Press Release 0228-04.   Additionally, applications were available

at local Farm Service Agency service centers.    Id.   Ingman alleges

only that he waited passively for the USDA to mail him his

application and his response was late as a result of the USDA’s

error in sending what was essentially a courtesy copy to a non-

current address.   These actions do not give rise to tolling of the

statute.

           Moreover, Ingman’s status as a pro se plaintiff does not

change the court’s treatment of the matter. Although leniency with

respect to mere formalities normally is extended to a pro se party,

when the matter concerns the time limitations placed on the consent

of the United States to suit, a court may not take a similarly

liberal view and set a different rule for pro se litigants.      See

Kelley v. United States Dep’t of Labor, 812 F.2d 1378, 1380 (Fed.

Cir. 1987) (finding that plaintiffs who missed the sixty day

deadline to appeal the Department of Labor’s final determination on

their application for TAA were not entitled to leniency simply

because of their status as pro se applicants).
Court No. 05-00268                                             Page 13

                            CONCLUSION

           Because Ingman neither alleges that he satisfied the

statutory filing deadline, nor do the facts warrant equitable

tolling, the government’s motion to dismiss for failure to state a

claim is granted.



                                         /s/ Jane A. Restani
                                          Jane A. Restani
                                          Chief Judge


Dated:   New York, New York
         This 2nd day of September, 2005.
