1The court would like to express its appreciation to

Williams Mullen for representing plaintiff pro bono.

Slip Op. 06-150

UNITED STATES COURT OF INTERNATIONAL TRADE

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

KYONG TRUONG, :

 : 

Plaintiff, :

 : 

v. : Before: Pogue, Judge 

 : Ct. No. 05-00419

UNITED STATES SEC’Y OF :

AGRICULTURE, :

 : 

 Defendant. :

 :

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

[Remanded for consideration of Plaintiff’s claim for equitable

tolling; Defendant’s motion to dismiss denied.]

Dated: October 12 ,2006

Williams Mullen (Jimmie V. Reyna and Francisco J. Orellana) for

Plaintiff;1

Peter D. Keisler, Assistant Attorney General; David M. Cohen,

Director, Patricia McCarthy, Assistant Director, Commercial

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

(Elizabeth Thomas, Trial Attorney) for Defendant United States

Secretary of Agriculture.

MEMORANDUM OPINION

Pogue, Judge: On November 30, 2004, the Secretary of Agriculture

(hereinafter, “the Secretary” or “the government”) recertified

Texas shrimpers for trade adjustment assistance under the Trade

Adjustment Assistance Reform Act of 2002, Pub. L. 107-210, Title 1,

Subtitle C, § 141, 116 Stat. 933, 946 (2002), as codified 19

U.S.C. § 2401(e) (West Supp. 2005). See Trade Adjustment
Ct. No. 05-00419 Page 2

Assistance for Farmers, 69 Fed. Reg. 69,582, 69,582 (USDA Nov. 30,

2004) (notice). From the date of this notice, the Trade Act of

2002 required eligible shrimpers to file an application by February

28, 2005 to qualify for benefits. See id. See generally 19 U.S.C.

§ 2401e(a)(1); 7 C.F.R. § 1580.301(b); 7 C.F.R. § 1580.102.

Plaintiff, Kyong Truong, filed for benefits on March 21, 2005 –

some 21 days after the deadline. Citing the untimeliness of her

application, the United States Department of Agriculture’s Farm

Service Agency ("FSA"), on May 3, 2005, denied Mrs. Truong’s

application. 

Mrs. Truong brought suit before the court claiming that the

FSA did not properly provide her notice of the recertification of

benefits as required under 19 U.S.C. § 2401d. Therefore, Mrs.

Truong contends that the filing deadline should be equitably

tolled. Mrs. Truong did not raise an adequacy of notice defense

before the FSA. As such, the FSA has not had an opportunity to

consider this claim.

Before the court are Mrs. Truong’s motion for judgment on the

agency record and the government’s motion to dismiss. For the

reasons set forth below the court remands this matter to the FSA to

consider Mrs. Truong’s claim for equitable tolling and denies the

government’s motion to dismiss.

DISCUSSION

The court must uphold the Secretary's determination unless it
Ct. No. 05-00419 Page 3

2That provision provides:

The findings of fact by the Secretary of Labor, the

Secretary of Commerce, or the Secretary of Agriculture,

as the case may be, if supported by substantial evidence,

shall be conclusive; but the court, for good cause shown,

may remand the case to such Secretary to take further

evidence, and such Secretary may thereupon make new or

modified findings of fact and may modify his previous

action, and shall certify to the court the record of the

further proceedings. Such new or modified findings of

fact shall likewise be conclusive if supported by

substantial evidence.

is unsupported by substantial evidence on the record or otherwise

not in accordance with law. See 19 U.S.C. § 2395(b).2 See Lady

Kelly, Inc. v. U.S. Sec'y of Agric., 30 CIT ___, ___, 427 F. Supp.

2d 1171, 1176 (2006). There is no exception from this rule when

reviewing an agency decision not to equitably toll its deadline.

See id.; see also Mahmood v. Gonzales, 427 F.3d 248, 252-53 (3rd

Cir. 2005); Singh v. Gonzales, 416 F.3d 1006, 1015 (9th Cir. 2005);

Sprint Commcn’s Co. v. FCC, 76 F.3d 1221, 1226 (D.C. Cir. 1996);

Hill v. U.S. Dep’t of Labor, 65 F.3d 1331, 1339 (6th Cir. 1995).

Cf. Johnston v. Office of Pers. Mgmt., 413 F.3d 1339, 1343 (Fed.

Cir. 2005) (holding that, under a theory of waiver, whether

claimant received sufficient notice so as to excuse a late filing

must be resolved by the agency). Accordingly, where, as here, the

agency has not had the opportunity to consider a question, the

court’s review is limited. See generally INS v. Ventura, 537 U.S.

12, 16 (2002) (“Generally speaking, a court of appeals should
Ct. No. 05-00419 Page 4

3The government claims that there exists tension between the

Court of Appeals for the Federal Circuit’s decisions in

Autoalliance Int'l, Inc. v. United States, 357 F.3d 1290, 1294

(Fed. Cir. 2004) (rejecting tolling of 2636(a) because “[i]n

suits against the United States, jurisdictional statutory

requirements cannot be waived or subjected to excuse or remedy

based on equitable principles.” (quoting Mitsubishi Elecs. Am,

Inc. v. United States, 18 CIT 929, 932, 865 F. Supp. 877, 880

(1994)), and Former Employees of Sonoco Prods. Co. v Chao, 372

F.3d 1291, 1298 (Fed Cir. 2004) (finding claims for equitable

tolling valid under 2636(d), although ultimately finding the

claim unmeritorious). The Federal Circuit adheres to the rule

that a prior precedent governs unless and until it is overturned

en banc or by the Supreme Court. See, e.g., El-Shifa Pharm.

Indus. Co. v. United States, 378 F.3d 1346, 1352 (Fed. Cir.

2004). As such, even though the language in Autoalliance Int’l

appears clearly irreconcilable with Irwin v. Dep't of Veterans

Affairs, 498 U.S. 89 (1990), because Autoalliance Int’l was

decided prior to Former Employees of Sonoco Prods Co., it must

prevail. With that said, it is not clear to the court that the

cited language from Autoalliance Int’l was intended to sweep so

broadly. Moreover, Autoalliance Int’l involved a plaintiff

missing the court’s filing deadline; in contrast, Mrs. Truong

missed the agency’s filing deadline. Only the former could

implicate the court’s subject matter jurisdiction. See Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 393-94 (1984)

(continued...)

remand a case to an agency for decision of a matter that statutes

place primarily in agency hands.”). The court may only resolve the

matter itself if “the outcome is clear as a matter of law.”

Mahmood, 427 F.3d at 253.

In accordance with the court’s prior decisions, the government

has conceded (for purposes of this motion) that the deadline

specified in 19 U.S.C. § 2401e is subject to equitable tolling.

See Lady Kelly, Inc., 30 CIT at ___, 427 F. Supp. 2d at 1175;

Ingman v. U.S. Sec'y of Agric., 29 CIT ___, ___, Slip Op. 05-119 at

11 (Sept. 2, 2005).3 Nevertheless, the government claims that Mrs.
Ct. No. 05-00419 Page 5

3(...continued)

(distinguishing agency filing deadlines from jurisdictional

deadlines and noting that the former was subject to “waiver,

estoppel, and equitable tolling”). Because even a broad reading

of Autoalliance Int’l would not apply to non-jurisdictional

statutory requirements, the court finds equitable tolling

permissible under Irwin v. Dep't of Veterans Affairs, 498 U.S.

89, 95 (1990). 

4The FSA has not challenged this requirement here. 

Therefore, unless construed as a jurisdictional requirement, this

claim may be waived. See United States v. Priority Prods., Inc.,

793 F.2d 296, 300 (Fed. Cir. 1986) (“Exhaustion of administrative

remedies is not strictly speaking a jurisdictional requirement

and hence the court may waive that requirement and reach the

merits of the complaint.”); cf. Mathews v. Eldridge, 424 U.S.

(continued...)

Truong’s assertion of equitable tolling is insufficient as a matter

of law and fact.

A. EXHAUSTION

Before proceeding with the substantive analysis, the court

must decide the threshold issue of exhaustion. Here, Mrs. Truong

is contesting a final determination of the FSA denying benefits; as

noted above, this determination is reviewable under 19 U.S.C. §

2395(a). 

However, besides timely contesting a reviewable determination,

the court’s founding statute also requires 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.” 28 U.S.C. § 2637(d) (2000) (emphasis

added).4 This exhaustion requirement mandates that “courts should
Ct. No. 05-00419 Page 6

4(...continued)

319, 330 (1976) (finding that a statutory exhaustion requirement

was waiveable). Nonetheless, assuming for the purposes of

argument only that this inquiry is jurisdictional in nature, cf.

Ingman, 29 CIT at ___, Slip Op. 05-119 at 7 n.3, the court

raises this issue sua sponte.

5 This is not to say, however, that the agency could not

invoke it’s regulation at 7 C.F.R. §1580.501 to consider Ms.

Truong’s claim.

not topple over administrative decisions unless the administrative

body not only has erred, but has erred against the objection made

at the time appropriate under its practice. Woodford v. Ngo, 548

U.S. ___, No. 05-416, Slip Op. at 8 (June 22, 2006) (quoting United

States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952))

(emphasis in original). This “requir[es] proper exhaustion of

administrative remedies, which ‘means using all steps that the

agency holds out, and doing so properly (so that the agency

addresses the issues on the merits.)’” Woodford, Slip Op. at 8

(quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002))

(emphasis in original). 

Although the equitable tolling claim was not presented to the

FSA, the FSA has not demonstrated that it has a procedure to

consider such claims. Indeed, neither its application form nor its

regulations specify means of asserting an equitable tolling claim.5

See Ingman, 29 CIT at ___, Slip Op. 05-119 at 8. As such, Mrs.

Truong has properly exhausted all the steps the agency held out.

Id. at 8.
Ct. No. 05-00419 Page 7

Because the court finds that Mrs. Truong timely contested a

determination by the FSA within the meaning of 19 U.S.C. § 2395,

and that she properly exhausted available administrative remedies,

the court may consider Mrs. Truong’s claim.

B. ADEQUACY OF LEGAL CLAIM FOR EQUITABLE TOLLING

Mrs. Truong alleges that the Secretary (a) failed to mail

notice of benefits and (b) failed to adequately publish the

availability thereof in a local newspaper. Therefore, Mrs. Truong

claims, the deadline should be tolled. The FSA argues that, even

assuming the FSA did not provide Mrs. Truong notice of the

availability of benefits, Mrs. Truong’s complaint does not

sufficiently allege a basis for equitable tolling. The court

disagrees.

The United States Supreme Court defined the legal contours of

equitable tolling claims against the government in Irwin v. Dep’t

of Veterans Affairs, 498 U.S. 89, 95-96 (1990). Rejecting the

notion that the U.S. government is exempt from equitable tolling

defenses, the Court held that “[o]nce Congress has made such a

waiver [of sovereign immunity], we think that making the rule of

equitable tolling applicable to suits against the Government, in

the same way that it is applicable to private suits, amounts to

little, if any, broadening of the congressional waiver.” Id. at 95

(emphasis added). In private suits, the Court continued:
Ct. No. 05-00419 Page 8

6Contrary to the FSA’s averments, the two examples listed in

Irwin are not the exclusive grounds on which equitable tolling

may be claimed. See Young v. United States, 535 U.S. 43, 50

(2002) (“We have acknowledged, however, that tolling might be

appropriate in other cases” than those recited in Irwin) (citing

Baldwin County Welcome Ctr., 466 U.S. at 151).

Federal courts have typically extended equitable relief

only sparingly. We have allowed equitable tolling in

situations where the claimant has actively pursued his

judicial remedies by filing a defective pleading during

the statutory period, or where the complainant has been

induced or tricked by his adversary's misconduct into

allowing the filing deadline to pass. We have generally

been much less forgiving in receiving late filings where

the claimant failed to exercise due diligence in

preserving his legal rights. Baldwin County Welcome

Center v. Brown, 466 U.S. 147, 151 (1984).

Id. at 96. In this discussion, the Court cited Baldwin County

Welcome Ctr. v. Brown which, itself, provided further examples of

where equitable tolling may be granted.6 Within that list, the

Baldwin Court mentioned cases where “a claimant has received

inadequate notice[.]” Baldwin County Welcome Ctr., 466 U.S. at

151. For this proposition the Court cited the Ninth Circuit’s

decision in Gates v. Georgia-Pac. Corp., 492 F.2d 292 (9th Cir.

1974).

In Gates, the appellee failed to timely appeal a decision of

the Equal Employment Opportunity Commission (“Commission”). Gates,

492 F.2d at 295. The Commission’s regulations required the

Commission to inform interested parties of its decision and to

notify the aggrieved party that he or she had 30 days to contest

that determination in a district court. Although the Commission
Ct. No. 05-00419 Page 9

informed the appellee “that the Commission was closing her case for

lack of jurisdiction, it did not advise [her] that she could

commence an action in the District Court within 30 days.” Id. The

Gates court found that because “of the Commission’s error, appellee

was confused and, under the circumstances, acted with all the

diligence and promptness which could be expected.” Id.

Consequently, the Ninth Circuit sustained appellee’s equitable

tolling claim.

This line of analysis is similar to decisions of the Court of

Appeals for the Federal Circuit excepting claimants from filing

deadlines (albeit not necessarily relying on the doctrine of

equitable tolling). See, e.g., Johnston, 413 F.3d at 1343 (finding

tolling appropriate under a theory of waiver); Brush v. Office of

Pers. Mgmt., 982 F.2d 1554, 1560-61 (Fed. Cir. 1992)(same). See

also Decca Hospitality Furnishings, LLC v. United States, 29 CIT

___, 391 F. Supp. 2d 1298 (2005) (finding that an agency cannot

impose a deadline for which it does not adequately inform parties).

In all these cases courts have concluded that a failure of an

agency to provide notice as required by its governing statutes or

regulations tolled a filing deadline.

That these equitable principles should be applied here is

evidenced by the intent behind the Trade Adjustment Assistance

Reform Act of 2002. Cf. Burnett v. N.Y. Cent. R.R. Co., 380 U.S.

424, 427 (1965) (“the basic inquiry is whether congressional
Ct. No. 05-00419 Page 10

purpose is effectuated by tolling the statute of limitations in a

given circumstance.”). Specifically, 19 U.S.C. § 2401d provides:

(b) Notice of benefits.

 (1) In general. The Secretary shall mail written

notice of the benefits available under this chapter [19

U.S.C. §§ 2401 et seq.] to each agricultural commodity

producer that the Secretary has reason to believe is

covered by a certification made under this chapter [19

U.S.C. §§ 2401 et seq.].

 (2) Other notice. The Secretary shall publish notice

of the benefits available under this chapter [19 U.S.C.

§§ 2401 et seq.] to agricultural commodity producers that

are covered by each certification made under this chapter

[19 U.S.C. §§ 2401 et seq.] in newspapers of general

circulation in the areas in which such producers reside.

Section 2401d expresses a Congressional determination that

agriculture commodity producers need assistance in learning about

their eligibility for benefits above that which would otherwise be

required. See S. Rep. 107-134 (“Section 296 requires the Secretary

of Agriculture to make outreach efforts in order to assure that

eligible agricultural producers are given an opportunity to apply

for and receive benefits under this title.”). Cf. 19 U.S.C. §

2401b(b) (requiring publication of certification in the Federal

Register); accord Guangzhou Maria Yee Furnishings, Ltd. v. United

States, 29 CIT ___, 412 F. Supp. 2d 1301, 1306 (2005) (finding that

agency regulations requiring notice could not be ignored because

those requirements furthered substantial interests). This

protection would be rendered nugatory if the court were to find that

a failure to provide notice was insufficient to toll the filing

deadline. 
Ct. No. 05-00419 Page 11

To be sure, equitable tolling is not available any time a party

fails to receive notice that is due. See, e.g., Irwin, 498 U.S.

at 95-96 (rejecting such a claim); Ingman, 29 CIT at ___, Slip Op.

05-119 at 11 (dismissing equitable tolling claim where lack of

notice was not attributed to agency error); cf. Jones v. Flowers,

546 U.S. ___, No. 04-1477, Slip Op. at 9 (2006) (the adequacy of “a

particular notice procedure is assessed ex ante, not post hoc”);

Dusenbery v. United States, 534 U.S. 161, 170 (2002) (noting that

actual receipt of notice is not necessary to satisfy Due Process).

Rather, "[e]quitable tolling focuses primarily on the plaintiff's

excusable ignorance of the limitations period." Lehman v. United

States, 154 F.3d 1010, 1016 (9th Cir. 1998)(emphasis in original);

accord Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.

1990) (Posner, J.). Nonetheless, where, as here, the Defendant has

an obligation to provide Plaintiff notice of the existence of his

or her claim, and has failed to do so, equitable tolling may be

appropriate. Accord Former Employees of Sonoco Prods. Co., 372 F.3d

at 1299-1300 (“Appellants cannot now blame Fail's late filing on a

government agency that was unaware of Fail's intention to appeal or

of her need to be made aware of the decision in a timely manner.”).

The court is also satisfied that Mrs. Truong has alleged the

requisite level of diligence. Whether premised on (1) radiations

from the Due Process Clause of the United States Constitution, see

e.g., Stieberger v. Apfel, 134 F.3d 37, 40 (2d Cir. 1997); cf.
Ct. No. 05-00419 Page 12

7The FSA has not alleged any prejudice to itself as a result

of Mrs. Truong’s late filing. Cf. Baldwin County Welcome Center,

466 U.S. at 152 ("[a]lthough absence of prejudice is a factor to

be considered in determining whether the doctrine of equitable

tolling should apply once a factor that might justify such

tolling is identified, it is not an independent basis for

(continued...)

Vargas-Garcia v. INS, 287 F.3d 882, 886 (9th Cir. 2002); (2) the

fact that statutory or regulatory notice requirements evidence a

legislative judgment regarding what may be reasonably expected or

required of claimants, see e.g., Johnston, 413 F.3d at 1342;

Guangzhou Maria Yee Furnishings, Ltd., 29 CIT at ___, 412 F. Supp.

2d at 1306; or (3) the understanding that claimants may reasonably

rely on agencies to discharge their duties, see, e.g., City of New

York v. N.Y., N. H. & Hartford R. Co., 344 U.S. 293, 297 (1953);

Decca Hospitality Furnishings, LLC, 29 CIT at ___, 391 F. Supp. 2d

at 1314-16, courts have generally found excusable ignorance results

where a defendant fails to provide the plaintiff proper notice of

his or her claim, see, e.g., Griffin v. Rogers, 399 F.3d 626, 637

(6th Cir. 2005) (holding tolling applied where claimant provided

inadequate notice); Veltri v. Bldg. Serv. 32B-J Pension Fund, 393

F.3d 318, 325-26 (2d Cir. 2004) (finding inadequate notice tolled

deadline where party did not have actual notice of the deadline);

Gates, 492 F.2d at 292. Accord Jones, 546 U.S. at ___, No.

04-1477, Slip Op. at 11 (rejecting inquiry notice defense); Decca

Hospitality Furnishings, LLC, 29 CIT at ___, 391 F. Supp. 2d at

1314-16 (same).7 If the FSA has failed to properly discharge its
Ct. No. 05-00419 Page 13

7(...continued)

invoking the doctrine. . . ."). 

statutory duty, then it is certainly understandable why a person

would remain justifiably ignorant of his or her claim. 

Therefore, as alleged, the court finds that Mrs. Truong does

state a case for equitable tolling. 

B) INSUFFICIENCY OF FACTUAL CLAIM

The government argues that, even assuming the above analysis,

Mrs. Truong has failed to satisfy her burden in showing the

propriety of equitable tolling. Specifically, the government

contends that (a) the FSA did comply with section 2401d by sending

Mrs. Truong a letter informing her of the recertification, (b) that

she had actual notice of the recertification, and (c) that she

failed to allege due diligence after receiving actual notice. The

record, however, is silent regarding any factual findings by the

agency on these questions. As these questions are, at the very

least, mixed questions of law and fact, the court will not weigh in

on these questions without first ascertaining the FSA’s views. Cf.

Johnston, 413 F.3d at 1343 (remanding to agency for further factfinding on whether notice was provided); Bayer v. U.S. Dep’t of

Treasury, 956 F.2d 330, 333-35 (D.C. Cir. 1992) (same).

CONCLUSION

For the foregoing reasons, the court remands this matter for
Ct. No. 05-00419 Page 14

further consideration consistent with this opinion. The government

shall have until November 13, 2006, to provide a remand

determination. Plaintiff shall submit comments on the government’s

remand determination no later than December 4, 2006, and the

government shall submit rebuttal comments no later than December

26, 2006. The government’s motion to dismiss is denied.

SO ORDERED.

Dated: October 12, 2006

New York, N.Y.

 /s/ Donald C. Pogue 

Donald C. Pogue, Judge