                            Slip Op. 08-54

           UNITED STATES COURT OF INTERNATIONAL TRADE


                                :
CONLIN GREENHOUSES,             :
                                :
               Plaintiff,       :
                                :
     v.                         :
                                : Before: Richard K. Eaton, Judge
UNITED STATES                   :
SECRETARY OF AGRICULTURE,       : Court No. 06-00441
                                :
               Defendant.       :
                                :
                                :

                               OPINION

[Plaintiff’s motion for judgment on the agency record denied,
defendant’s motion to dismiss granted and case dismissed.]

                                                Dated: May 20, 2008

     Steven D. Schwinn, for plaintiff.

     Gregory G. Katsas, Acting Assistant Attorney General; Jeanne
E. Davidson, Director, Patricia M. McCarthy, Assistant Director,
Commercial Litigation Branch, Civil Division, United States
Department of Justice (Marla T. Conneely); Office of the General
Counsel, United States Department of Agriculture (Jeffrey Kahn),
of counsel, for defendant.


     Eaton, Judge: Plaintiff1 seeks judicial review of the United

States Department of Agriculture’s (“Agriculture,” or the

“Department”) denial of its application for cash benefits under

the Trade Adjustment Assistance for Farmers (“TAA”) program.    19



     1
          It does not appear that plaintiff “Conlin Greenhouses”
is incorporated. Thus, for purposes of this opinion, it is
assumed that John and Susan Conlin are the plaintiffs and are
referred to as “the Conlins” or the plaintiff.
Court No. 06-00441                                      Page 2

U.S.C. § 2401e (2002);   Pl.’s R. 56.1 Mot. J. Agency R. (“Pl.’s

Mot.”).   Defendant moves to dismiss the complaint, pursuant to

USCIT Rules 12(b)(1) and 56.1, for lack of subject matter

jurisdiction, or, in the alternative, for the court to enter

judgment in its favor.   Def.’s Mot. Dismiss (“Def.’s Mot.”); see

also Pl.’s Resp. Mot. Dismiss (“Pl.’s Resp.”).   For the following

reasons, the court grants the Department’s motion to dismiss and

denies plaintiff’s motion for judgment upon the agency record.



                         STANDARD OF REVIEW

     Because it seeks to invoke the court’s jurisdiction,

plaintiff has the burden of proving jurisdiction by a

preponderance of the evidence.   Former Employees of Siemens Info.

Commc’n Networks, Inc. v. Herman, 24 CIT 1201, 1202, 120 F. Supp.

2d 1107, 1108 (2000) (citing McNutt v. Gen. Motors Acceptance

Corp., 298 U.S. 178, 189 (1936); Reynolds v. Army and Air Force

Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988)).



                             DISCUSSION

     According to the record, John and Susan Conlin grew

snapdragons at the Conlin Greenhouses in Indianapolis, Indiana,

until the business ceased operations in December of 2003.   See

Application for TAA, Conlin Greenhouses, Johnnie, Susan Conlin,

dated April 26, 2006, Admin. R. (“AR”) 3; Pl.’s Mot. 13; Letter
Court No. 06-00441                                       Page 3

dated December 8, 2006 from James E. Barbour to Susan Conlin,

Compl. Att. 2 at 1.   Thereafter, they sought to receive benefits

under the TAA program, as compensation for their losses.

Petitioning for TAA benefits is a two-step process.   In the first

step, a group of producers, or their authorized representative,

files with the United States Secretary of Agriculture (the

“Secretary”) a “petition for a certification of eligibility to

apply for adjustment assistance.”   19 U.S.C. § 2401a(a).   If the

Secretary certifies the group petition, individual producers

covered by the group certification may then apply for TAA

benefits.   19 U.S.C. § 2401e(a)(1); 7 C.F.R. § 1580.301 (2003).

      In this case, in November 2005, a petition for certification

was filed on behalf of the Indiana Flower Growers Association.

Pl.’s Mot. 5.   In February 2006, the group certification was

approved.   Pl.’s Mot. 5.   Thereafter, the Conlins applied for TAA

benefits.   Pl.’s Mot. 5.   On October 3, 2006, the Conlins learned

that they had been denied TAA benefits when they received a

letter, dated September 7, 2006, from the Department.   Pl.’s Mot.

6;   Letter dated Sept. 7, 2006, from Robert H. Curtis, Dir.,

Import Policies and Program Div., Int’l Trade Policy, Foreign

Agric. Serv., United States Dep’t of Agric. to Conlin

Greenhouses, AR 14 at 1 (the “Denial Letter”).   The letter stated

“the Foreign Agriculture Service has disapproved your 2006

Indiana Fresh Cut Snapdragons marketing year application for a
Court No. 06-00441                                        Page 4

cash benefit under the Trade Adjustment Assistance for Farmers

program (TAA).” Denial Letter, AR 14 at 1.    In addition, the

letter advised the Conlins of their right to judicial review of

the determination in this Court, noting that “[a]ppeals to the

Court must be filed within 60 days from the date of this letter.”

Denial Letter, AR 14 at 2.2   Thus, on October 3, 2006, the

Conlins had both notice of the Department’s final determination

and the sixty-day time limit for filing suit.

     On December 10, 2006, Susan Conlin initiated this suit by

sending a letter addressed to the Clerk of the Court, via

certified mail.   Letter dated December 8, 2006 from Susan Conlin

to Office of the Clerk, USCIT (“Compl.”).    The Clerk of the Court

deemed the letter to be a summons and complaint, filed on the

postmarked date. See USCIT Rule 5(e); Letter dated December 18,

2006 from Office of the Clerk, USCIT, Donald C. Kaliebe, Case

Management Supervisor, to Susan Conlin, at 1.    Thus, suit was

commenced sixty-eight days after receiving notice of the

Department’s final determination.     Plaintiff does not dispute

that it brought its suit more than sixty days after receiving

notice.   See generally Pl.’s Resp.    Plaintiff does argue,

however, that because the defendant failed to raise the


     2
          Although the letter indicates that the sixty-day
statute of limitations begins to run “from the date of this
letter,” the statute only states that suit must be brought
“within sixty days after notice of” a final determination. 19
U.S.C. § 2395(a).
Court No. 06-00441                                      Page 5

limitations period in its answer, it has waived any affirmative

defense predicated upon the statute of limitations.   Pl.’s Resp.

1.

     Under well-established law, a statute of limitations defense

is an affirmative defense, and is waived if it is not pleaded in

the answer.   USCIT R. 8(d); Parkdale Int’l Ltd. v. United States,

31 CIT __, __, 508 F. Supp. 2d 1338, 1348-1349 n. 6 (2007).     It

is equally well-settled, however, that a time limitation that is

a condition of the court’s jurisdiction cannot be waived and thus

can be raised at any time.   United States v. Hitachi America

Ltd., 172 F.3d 1319, 1334 (Fed. Cir. 1999) (“if [a statute of

limitations] is ‘jurisdictional’ in nature, it cannot be waived

by the parties under any circumstances. . . .”); USCIT Rule

12(h)(3) (“Whenever it appears by suggestion of the parties or

otherwise that the court lacks jurisdiction of the subject

matter, the court shall dismiss the action.”).   Accordingly, the

question of the court’s jurisdiction to consider plaintiff’s

claim turns on whether the sixty-day limitations period imposed

by 19 U.S.C. § 2395(a) is jurisdictional in nature.

     This question must be answered in the affirmative, and

requires plaintiff’s claim to be dismissed.   The Court of Appeals

for the Federal Circuit has held that the sixty-day filing
Court No. 06-00441                                      Page 6

deadline contained in 19 U.S.C. § 2395(a)3 is a “jurisdictional

requirement.”   Kelley v. Secretary, United States Dep’t of Labor,

812 F.2d 1378, 1380 (Fed. Cir. 1987) (“Kelley”).4   Kelley further

characterized the conditions imposed by 19 U.S.C. § 2395(a) as

“the terms upon which the United States has consented to be

sued,” and stated that a petitioner’s failure to observe the

sixty-day filing deadline would leave “the court [without]

jurisdiction to entertain the suit.”   Id. (citation and

quotations omitted).

     It is noteworthy that the plaintiff in Kelley was held to

have received constructive notice pursuant to the regulations

governing workers seeking trade adjustment assistance from the

Department of Labor, i.e., notice by publication in the Federal

Register.   By way of contrast, the Conlins had actual notice of



     3
          “[A]n agricultural commodity producer (as defined in
[19 U.S.C.] § 2401(2) of this title) aggrieved by a determination
of the Secretary of Agriculture under [19 U.S.C.] § 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.” 19
U.S.C. § 2395(a).


     4
          Agricultural commodity producers became entitled to
receive trade adjustment assistance and to seek judicial review
of any final determination in this Court effective August 6,
2002, subsequent to the Kelley decision. See Trade Act of 2002,
§ 141, Pub. L. No. 107-210, 116 Stat. 933, 953 (2002). There is
no indication that the addition of “agricultural commodity
producer[s]” to those who may seek review under 19 U.S.C.
§ 2395(a) changes the basic holding in Kelley.
Court No. 06-00441                                         Page 7

denial of benefits when they received the Denial Letter on

October 3, 2006.     See Denial Letter.   In other words, in this

case there is no question, as there was in Kelley, regarding the

notice necessary to start the running of the sixty-day

limitations period.

     Consequently, the court finds that the sixty-day statutory

period for challenging Agriculture’s final determination cannot

be waived, and the Department may properly assert the statute of

limitations by way of a motion to dismiss.      See, e.g., Former

Employees of Rocky Mountain Region Office of Terra Res., Inc. v.

United States, 13 CIT 427, 713 F. Supp. 1433 (1989) (no

jurisdiction over suit brought by pro se petitioners sixty-one

days after receiving notice); see also Washko v. Donovan, 4 CIT

271, No. 82-9-01333 (December 28, 1982) (not reported in the

Federal Supplement); Brunelle v. Donovan, 3 CIT 76, No. 81-10-

01453 (March 23, 1982) (not reported in the Federal Supplement).

Because plaintiff failed to begin its case in the time required

by statute, the court has no jurisdiction to hear its claims.
Court No. 06-00441                                        Page 8

                                CONCLUSION

     Based on the foregoing, the court grants defendant’s motion

to dismiss for lack of subject matter jurisdiction and denies

plaintiff’s motion for judgment upon the agency record.    Judgment

shall be entered accordingly.



                                /s/ Richard K. Eaton
                                    Richard K. Eaton


Dated:    May 20, 2008
          New York, New York
