                                        Slip Op. 05-112

             UNITED STATES COURT OF INTERNATIONAL TRADE
                          BEFORE: CARMAN, JUDGE
__________________________________________
                                           :
ROBERT ROOD,                               :
                                           :
                        Plaintiff,         :
                                           :
                  v.                       : Court No. 05-00303
                                           :
UNITED STATES SECRETARY                    :
OF AGRICULTURE,                            :
                                           :
                        Defendant.         :
__________________________________________:

[Defendant’s motion to dismiss for failure to state a claim upon which relief may be granted is
denied.]

                                                                    Dated: August 29, 2005

       Robert Rood, Pro se.

        Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice; Patricia M. McCarthy, Assistant
Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice; David S.
Silverbrand, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice; Jeffrey Kahn, Of Counsel, Office of the General Counsel, U.S. Department of
Agriculture, for Defendant.

                                     OPINION & ORDER

       CARMAN, Judge. Plaintiff Robert Rood challenges Defendant United States Secretary

of Agriculture’s (“USDA” or “Defendant”) denial of certification for trade adjustment assistance

(“TAA”) benefits pursuant to 19 U.S.C.A. § 2401e (West Supp. 2005). Defendant moves to

dismiss this case for failure to state a claim upon which relief may be granted under USCIT Rule
Court No. 05-00303                                                                              Page 2

12(b)(5). For the following reasons, Defendant’s motion to dismiss is denied. This Court has

jurisdiction over this matter under 19 U.S.C.A. § 2395(c) (West Supp. 2005).1

                                    STANDARD OF REVIEW

        Upon review of a motion to dismiss for failure to state a claim, “any factual allegations

in the complaint are assumed to be true and all inferences are drawn in favor of the plaintiff.”

Amoco Oil Co. v. United States, 234 F. 3d 1374, 1376 (Fed. Cir. 2000). It is well-established that

“a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt

that the plaintiff can prove no set of facts in support of his claim which would entitle him to

relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A complaint need not set forth detailed

facts but rather only “‘a short and plain statement of the claim’ that will give the defendant fair

notice of what the plaintiff’s claim is and the grounds upon which it rests.” Id. at 47; see also

USCIT R. 8(a)(2) (“A pleading which sets forth a claim for relief . . . shall contain . . . (2) a short



       1
         19 U.S.C. § 2395 was amended, effective 180 days after August 6, 2002, to provide the
Court of International Trade with jurisdiction over trade adjustment assistance matters brought by
agricultural commodity producers. Trade Act of 2002, Pub. L. No. 107-210, § 142, 116 Stat.
933, 953. In pertinent part, 19 U.S.C.A. § 2395, states:

               [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 to set such action aside, in whole or in part.

19 U.S.C.A. § 2395.
Court No. 05-00303                                                                             Page 3

and plain statement of the claim showing that the pleader is entitled to relief. . . .”). In

reviewing the sufficiency of a claim, “consideration is limited to the facts stated on the face of

the complaint, documents appended to the complaint, and documents incorporated in the

complaint by reference.” Fabrene, Inc. v. United States, 17 CIT 911, 913 (1993).

                                           DISCUSSION

       Plaintiff filed a complaint challenging the USDA’s denial of certification for TAA cash

benefits. The USDA determined that Plaintiff did not qualify for TAA cash benefits because

Plaintiff’s “2002 net fishing income did not decline from the latest year in which no adjustment

assistance payment was received (2001)” as required by 19 U.S.C.A. § 2401e(a)(1)(C) (West

Supp. 2005).2 (Agency Record (“A.R.”) at 16; Attach. to Compl.) Defendant explained:

               In 2001, the tax return Mr. Rood submitted to the IRS reported a
               net loss from commercial fishing of $2,723 on Line 31 of Schedule
               C. [A.R.] at 9. In 2002, the tax return Mr. Rood submitted to the
               IRS reported a net profit from commercial fishing of $2,096 on
               Line 31 of Schedule C. [A.R.] at 8.

Def.’s Mot. to Dismiss for Failure to State a Claim upon Which Relief May Be Granted (“Def’s

Mot.”) at 4. This Court notes, however, that the 2002 Schedule C that Defendant references

appears to represent Plaintiff’s wife’s aerobic business profit, not Plaintiff’s fishing business loss.



       2
        Payment of adjustment assistance shall be made to an adversely affected agricultural
commodity producer covered by certification if certain statutory conditions are met. The
requirement at issue is:

               The producer’s net farm income (as determined by the Secretary)
               for the most recent year is less than the producer’s net farm income
               for the latest year in which no adjustment assistance was received
               by the producer under this part.

19 U.S.C.A. § 2401e(a)(1)(C).
Court No. 05-00303                                                                              Page 4

(A.R. at 8.) As attachments to his Complaint, Plaintiff included his 2002 Schedule C for his

fishing business. Line 31 of Plaintiff’s 2002 Schedule C reflects a net loss from commercial

fishing of $16,763. (Attach. to Compl.) This document is notably not a part of the agency record

which was compiled and submitted by the USDA.

       Although recognizing that Plaintiff – pro se litigant – did not respond to Defendant’s

motion to dismiss, this Court makes its motion to dismiss determination on the sufficiency of

Plaintiff’s Complaint. This Court acknowledges the axiom that the “Federal Rules reject the

approach that pleading is a game of skill in which one misstep by counsel may be decisive to the

outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on

the merits.” Conley, 355 U.S. at 48. Therefore, upon review of the Complaint and attached

documents, this Court finds it does not appear beyond doubt that Plaintiff can prove no set of

facts in support of his claim which would entitle him to relief. Assuming the Complaint’s factual

allegations to be true and drawing all inferences in Plaintiff’s favor, this Court finds that Plaintiff

has sufficiently alleged a cause of action and denies Defendant’s motion to dismiss. For the

aforementioned reasons, it is hereby

       ORDERED that Defendant’s motion to dismiss for failure to state a claim upon which

relief may be granted is denied; and it is further

       ORDERED that Defendant file an answer no later than September 30, 2005.



                                                         /s/ Gregory W. Carman
                                                       Gregory W. Carman
                                                       Judge
Dated: August 29, 2005
New York, New York
