SLIP OP. 07-89

UNITED STATES COURT OF INTERNATIONAL TRADE

------------------------------x

DURFEY, et. al :

 : 

Plaintiffs, :

 : Before: Pogue, Judge

 v. : Court No. 06-00316

 :

:

UNITED STATES SEC’Y :

OF AGRICULTURE, :

 : 

Defendant. :

------------------------------x

[Defendant’s motion for Judgment on the Agency record granted.]

Dated: June 5, 2007.

Akin Gump Strauss Hauer & Feld LLP (Spencer Stewart Griffith,

Bernd G. Janzen, Bryce V. Bittner) for the Plaintiffs Ted Durfey,

Pam Durfey. 

Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson,

Director, Patricia M. McCarthy, Assistant Director, Commercial

Litigation Branch, Civil Division, U.S. Department of Justice

(Delisa M. Sanchez); Jeffrey Kahn, Attorney, Office of the General

Counsel, Department of Agriculture (of Counsel) for Defendant

United States Secretary of Agriculture. 

OPINION AND ORDER

Pogue, Judge: Plaintiffs, Ted and Pam Durfey, initiated this action

on September 22, 2006, by filing a complaint seeking review of the

United States Department of Agriculture’s (“USDA”) denial of

Plaintiffs’ application for Trade Adjustment Assistance (“TAA”).

Defendant, the USDA, responded by filing a USCIT R. 12(b)(1)

motion, seeking to dismiss the case for lack of subject matter

jurisdiction, claiming that a final determination had yet to be
Court No. 06-00316 Page 2

issued by the USDA regarding the denial (or approval) of benefits.

The USDA subsequently did issue a final determination denying the

Durfeys’ application, at which point Defendant filed a USCIT R.

12(b)(5) motion, requesting that the action be dismissed due to

Plaintiffs’ failure to state a claim upon which relief could be

granted. 

The court determined that the issues raised by Defendant’s

USCIT R. 12(b)(5) motion would require it to examine matters

outside the pleadings; therefore, and pursuant to the court’s

authority under USCIT R. 12(b), on February 7, 2007, the court

converted Defendant’s motion to a USCIT R. 56.1 motion for judgment

upon the agency record, and invited the parties to file briefs or

comments by March 7, 2007. Defendant, on March 7, 2007, submitted

a subsequent USCIT R. 56.1 motion for judgment on the agency

record. The court has awaited Plaintiffs’ response to either its

letter of February 7, 2007 or to Defendant’s motion of March 7,

2007. On May 10, 2007, Plaintiffs, who hitherto had been

proceeding pro se, obtained counsel who filed an appearance in this

case. 

As of today’s date, Plaintiffs have not filed any response to

the Defendant’s USCIT R. 56.1 motion. Therefore, the court will

treat the Defendant’s motion as uncontested. Accordingly, the

court affirms the determination of the USDA denying Mr. and Mrs.

Durfey’s TAA applications, and will enter judgment for the
Court No. 06-00316 Page 3

Defendant. 

SO ORDERED.

Dated: June 5, 2007

 New York, N.Y.

 /s/ 

Donald C. Pogue, Judge 
SLIP OP. 07-89

UNITED STATES COURT OF INTERNATIONAL TRADE

------------------------------x

DURFEY, et. al :

 : 

Plaintiff, :

 : Before: Pogue, Judge

 v. : Court No. 06-00316

 :

:

UNITED STATES SEC’Y :

OF AGRICULTURE, :

 : 

Defendant. :

------------------------------x

Judgment

This action has been duly submitted for decision, and this

Court, after due deliberation, has rendered a decision herein; now,

in conformity with that decision, it is hereby

ORDERED that the United States Department of Agriculture’s motion

for Judgment on the Agency Record is granted; and it is further

ORDERED that this action is dismissed.

 /s/ 

 Donald C. Pogue

 Judge

Dated: June 5, 2007

 New York, New York