Slip Op. 07-19 UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Leo M. Gordon, Judge Court No. 06-00138

OPINION AND ORDER [Defendant’s motion for judgment on the agency record denied; case remanded.] Dated: February 5, 2007 Wilmer Cutler Pickeri ng Hale and Dorr LLP (John D. Greenwald and Lynn M. Fischer Fox ) for the Plaintiff.

Peter D. Keisler , Assistant Attorney General; David M. Cohen , Director, and Patricia M. McCarthy , Assistant Director, Commercial Li tigation Branch, Civil Division, U.S. Department of Just ice (Richard P. Schroeder ), for the Defendant. Gordon, Judge: The court has jurisdiction over this action pursuant to Section 142 of the Trade Act of 2002, as amended, 19 U.S.C. § 2395 (Supp. 2004). 1 Plaintiff Julie Nguyen, a shrim per from Texas, challenges the denial of trade adjustment assistance (“TAA”). Defendant Un ited States Secretary of Ag riculture moves to dismiss for failure to state a claim upon which relief can be granted pursuant to USCIT R. 12(b)(5), arguing that Plaint iff’s application for TAA was untimely. Pursuant to its discretion under USCI T R. 12(b), the court has converted

Defendant’s motion to dismiss for failure to state a claim upon wh ich relief can be

1 All further citations to the Trade Act of 1974, as amended by the Tr ade Act of 2002, are to the relevant provision in Title 19 of the U.S. Code, 2004 Supplement. JULIE NGUYEN, Plaintiff,

v. UNITED STATES SECRETARY OF AGRICULTURE,

Defendant.Court No. 06-00138 Page 2 granted to a motion for judgment upon the agency record pursuant to USCIT R. 56.1. See USCIT R. 12(b). Prior to converting Defendant’s motion, the court provided the parties an opportunity to address the merits in additional submissions. After reviewing the administ rative record the court concludes that Defendant’s

final determination contains a misstatement of material fact that precludes the court from evaluating the basis for the agency’s acti on. Accordingly, the court remands the matter to the agency for further consideration of Plaint iff’s application in its proper

context. I. Background

In November 2004 the Forei gn Agricultural Service (“F AS”) of the United States Department of Agriculture certif ied shrimpers landing their catc h in Texas as eligible to apply for fiscal year 2005 TAA benefits. Trade Adjustment Assistance for Farmers , 69 Fed. Reg. 69,582 (Dep’t of Agric. Nov. 30, 2004) (notice of certification). The 90-day period to apply for those benefits began on November 29, 2004, and closed on February 28, 2005. Id. Plaintiff Julie Nguyen and her husband, Be Nguyen (“Mr. Nguyen”), are Texas shrimpers and joint owners of the shrimp ing vessel the “Klein Express.” On February 17, 2005, Mr. Nguyen timely filed an individual application for fiscal year 2005 benefits with the local Farm Service A gency (“county agent”) that administers the TAA program in Jefferson/Orange Count y, Texas. (Pub. R. at 30.) 2 The county agent granted the applicati on on August 22, 2005, and paid Mr. Nguyen $10,000 in adjustment assistance.

2 The public version of the administrat ive record is cited as “Pub. R.”Court No. 06-00138 Page 3 After receiving this payment the N guyens learned that a husband and a wife engaged in a farming operation as a joint v enture are both eligib le to receive TAA benefits. The Nguyens subse quently submitted a revised ap plication to the county agent on December 29, 2005, listing both Pl aintiff and her husband as eligible producers, and re-attaching the certifying documentation submitt ed with Mr. Nguyen’s individual application. (Pub. R. at 1.) The revised applic ation was filed four months after Mr. Nguyen received his $10,000 payment and ten months after the closure of the 90-day application period fo r fiscal year 2005 benefits. Upon receiving the revised application, t he county agent forwarde d it to FAS in Washington D.C. for resolution. In its tr ansmittal letter, the county agent noted three times that the Nguyens’ revi sed application was for the “joi nt operation” of Be and Julie Nguyen. Letter dated Feb. 21, 2006, from Executive Director Darrell Guidry to FAS Deputy Director (Pub. R. at 27). FAS responded by denying the Nguyens’ revised application as untimely, but incorrectly stated that t he Nguyens were seeking payments as individuals as opposed to jointly: In your letter, you stated that the N guyen’s [sic] requested that their TAA application be revised so that t hey may receive TAA payments as individuals and not jointl y as originally filed . Their request is denied since the application deadline for th is petition has expired. Letter dated Mar. 6, 2006, from FAS Director Robert Curtis to Executive Director Darrell Guidry (Pub. R. at 28) (emphasis added). On April 4, 2006, FAS notified the Nguyens

of the denial of their revis ed application. Letter dated Ap r. 4, 2006, from FAS Director Robert Curtis to Be and Julie Nguyen (Pub. R. 29). Plaintiff then commenced this

action.Court No. 06-00138 Page 4 II. Standard of Review The court reviews FAS’ findings under the “substantial ev idence” standard, 19 U.S.C. § 2395(b), which in essence requi res the court to consider whether the agency’s determination is “unreas onable” given the administrative record as a whole. Nippon Steel Corp. v. United States , 458 F.3d 1345, 1351 (F ed. Cir. 2006). If the agency misstates material facts in its final determination so that the court cannot evaluate the agency’s action, t hen the proper course is to remand to the agency for further consideration. See Florida Power & Light Co. v. United States Nuclear Regulatory Comm’n , 470 U.S. 729, 744 (1985) (“[I]f the reviewing court simply cannot evaluate the challenged agency ac tion on the basis of the record before it, the proper course, except in rare circumstances, is to remand to t he agency for additional investigation or explanation.”)

III. Discussion The TAA statute provides t hat payment of “adjustmen t assistance . . . shall be made to an adversely affected agricultura l commodity producer covered by a certification . . . who files an applic ation for such assistance within 90 days after the date on which the Secretary makes a dete rmination and issues a certification of eligibility . . . .” 19 U. S.C. § 2401e(a)(1) (emphasis added). The statute does not address whether the 90-day deadline applies to a TAA recipient’s revised application to include the recipient’s spouse as part of a joint operation. Id. The TAA regulations, on the other hand, provide that the agency may authorize the county agent “to waive or modify non-statutor y application deadlines or other program requirements in casesCourt No. 06-00138 Page 5

where lateness or failure to meet other program require ments by applicants does not adversely affect the operat ion of the program.” 7 C.F.R. § 1580.501 (2005) (emphasis added). In denying the Nguyens’ revised applicat ion as untimely, the agency did not address whether an application like Plaintiff’ s is subject to the 90-day deadline of section 2401e(a)(1), or is instead governed by some non- statutory application deadline, which the agency has the discret ion to waive or modify under 7 C.F.R. § 1580.501. This is an issue that the agen cy, not the court, needs to address in the first instance. See generally Richard J. Pierce, Jr., Administrative Law Treatise § 14.3 at 941 (4th ed. 2002) (noting that court should a fford agency first opportunity to interpret an agency-administered statute when “(1) the statutory l anguage is capable of bearing more than one reasonable construction, (2 ) the choice between or among those

alternative constructions is critical to t he outcome of the case before the court, and (3) the agency has not previously adopted a construction of the language at issue.”) More fundamentally, the agency’s final determination misstates the factual predicate of the Nguyens’ revi sed application. FAS erred in stating that the Nguyens were seeking TAA benefits “as individuals a nd not jointly as originally filed.” Letter dated Mar. 6, 2006, from FAS Director Robert Curtis to Executive Director Darrell Guidry (Pub. R. at 28). FAS has it backw ards. Mr. Nguyen orig inally applied as an individual, and the Nguyens are now ap plying as a joint operation. See Letter dated Feb. 21, 2006, from Execut ive Director Darrell Guidry to FAS Deputy Director (Pub. R. at 27). This misst atement requires a remand to t he agency for consideration of the revised application in it s proper context—a request to obtain benefits for a jointCourt No. 06-00138 Page 6 operation by revising a timely filed individ ual TAA application that has been granted. See, e.g. , Metallverken Nederland B.V. v. United States , 13 CIT 1013, 1030-31, 728 F. Supp. 730, 743 ( 1989) (misstatement of material fact by agency required remand for further consideration). Accordingly, it is ordered that th is action is remanded to Defendant for reconsideration of the revised application, and that Defendant shal l report its remand

results to the court on or before April 10, 2007. Subsequent to the filing of the Defendant’s remand results, t he court will conference with t he parties to establish a

schedule for the submission of co mments on those results.

/s/ Leo M. Gordon Judge Leo M. Gordon

Dated: February 5, 2007 New York, New York