1 The 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 [Remandedfor consideration o f Pla intiff’s claim for equitable tolling; Defendant’s motion to dismiss denied.] Dated: October 12 ,2006 Williams Mu lle n ( 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 o f Justice ( Elizabeth Thomas , Trial Att orney ) 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 codified19 U.S.C. § 2401(e) (West Sup p. 2005). See Trade AdjustmentCt. 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 appli c ation, the United States Department of Agriculture’s Farm Ser vice Agency ("FSA"), on May 3, 2005, denied Mrs. Truong’s application. Mrs. Truo ng bro ught 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 equ itably tolled. Mrs. Truong did not raise an adequacy o f not ice 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 agencyrecord 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 itCt. No. 05-00419 Page 3

2 That provision provides: The findings of fact by the Se cretar y 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 Sec retary to take further evidence, and such Sec reta ry may thereupon make new or modifiedfindings of fact and may modify his previous action, and shall certify to the court the record of the further proceedings . S uch new or modified findings of fact shall likewise be conclusive i f s upported by substantial evidence. is unsupported by substantial evidence on the record or otherwise not in accordance with l aw. See 19 U.S.C. § 2395(b). 2 See Lady Kelly, Inc. v. U.S. Sec'y of Agric. , 30 CIT ___, ___, 427 F. Supp. 2d1171, 1176 (2006). There is no exception from this rule when reviewing an agency decisi on not to equitably toll its deadline. See id. ; see also Mahmood v. Gonzales , 427 F.3d248, 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 . Joh nston 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 agencyhas 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 cour t of a ppeals shouldCt. No. 05-00419 Page 4

3 The 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 onlyresolve the matter i tself 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 pur poses of this motion) that the deadline specifiedin 19 U.S.C. § 2401e is subject to equitable tolling. See Lady Kelly, Inc. , 30 CIT at ___, 4 27 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).

4 The 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 proc e eding 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 notedabove, th is determination is reviewable under 19 U.S.C. § 2395(a). However, besides timely contesting a reviewable determination, the court’s founding sta tut e also requires that “[i]n any civil action not specified in this section, the Court of In ternat ional T rade shall, where appropriate , require the exhaustio n o f administrative remedies .” 28 U.S.C. § 2637(d) (2000) (emphasis added). 4 This exhaustion requirement mandates that “courts shouldCt. 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. Tucke r Tru ck Lines, Inc. , 344 U.S. 33, 37 (1952)) (emphasis in origi nal ). This “requir[es] proper exhaustion of administrative remedies, whi ch ‘means using all steps that the agencyholds 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 no t 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 C IT 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 cont ested a determination by t he FS A within the meaning of 19 U.S.C. § 2395, andthat 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 availabilitythereof 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 availabilityof benefits, Mrs. Truong’s complaint does not sufficientlyallege 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 e xempt 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 agai nst the Government, in the same way that it is appl icable 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

6 Contrary 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 onlys parin gly. We have allowed equitable tolling in situations where the claimant has act ivel y pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been inducedor 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 mention ed c ases where “a claimant has received in adequate notice[.]” Baldwin County Welcome Ctr. , 466 U.S. a t 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 notifythe aggrieved party that he or she had 30 days to contest that dete rminat ion in a district court. Although the CommissionCt. No. 05-00419 Page 9

informedthe 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 co nfusedand, 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 deadline s (a lbeit 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. Unite d Stat es , 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 th at a fail ure of an agency to provide notice as required by its governing statutes or regulations tolled a filing deadline. That these equitable principles should be applie d he re is evidenced by t he 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 in quir y is whether congressionalCt. 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 agri cultural commodity producer that the Secretaryhas reason to believe is coveredby a certification mad e un der 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 express e s a Congressional determination that agricultur e commodity producers need assistance in learning about their eligibilityfor benefits above that which would otherwise be required. See S. Rep. 107-134 (“Section 296 requires the Secretary of Agricul ture to make outreach efforts in order to assure that eligible agricultural prod ucers are given an opportunity to apply for and rec eive ben efits under this title.”). Cf. 19 U.S.C. § 2401b(b) (requiring pu bli cation of certification in the Federal Register); ac cord Guangzhou Maria Yee Furnishings, Ltd. v. United States , 29 CIT ___, 412 F. Supp. 2d 1301, 1306 (2005) (finding that agencyre g ulations requiring notice could not be ignored because those requirements furthered substantial interests). T h is protection would be rendered nugatory if the court were to find that

a failure to provide notice was insufficient t o toll the filing deadline.Ct. No. 05-00419 Page 11

To be sure, equitable tolling is not available any time a party fail s 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. J ones v. Flowers , 546 U.S. ___, No. 04-1477, Slip Op. at 9 (2006) (the adequacy of “a particu lar notice procedure is assessed ex ante , not post hoc ”); Dusenberyv. United States , 534 U.S. 161, 170 (2 002) (noting that actual receipt of notice is not necessary to satisfy Due Process) . Rather, "[e]qu it able tolling focuses primarily on the plaintiff's excusable ignorance of the limita t ions period." Lehman v. United States , 154 F.3d1010, 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 ex istence of his

or her claim, an dhas 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 fromthe Due Process Clause of the United States Constitution, see e.g. , St ieberger v. Apfel , 134 F.3d 37, 40 (2d Cir. 1997); cf.Ct. No. 05-00419 Page 12

7 The 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...) Va rgas-Garcia v. INS , 287 F.3d 882, 886 (9th Cir. 2002); (2) th e fact that statutor y or regulatory notice requirements evidence a legislative judgment regarding what may be reasonably expected or requiredo f c laimants, see e.g. , Johnston , 413 F.3d at 1342; Guangzhou Maria Yee Furnishings, Ltd. , 29 CIT at ___, 412 F. Supp. 2dat 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 HospitalityFurnishings, 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 HospitalityFurnishings, LLC , 29 CIT a t ___, 391 F. Supp. 2d at 1314-16 ( sa me). 7 If the FSA has failed to properly discharge itsCt. No. 05-00419 Page 13

7 (...continued) invoking the doctrine. . . ."). sta tutory duty, then it is certainly understandable why a pe rso n 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 proprietyof equitable tolling . Specifically, the government contends that (a) the FSA didcomply 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 failedto allege due diligence after receiving actual notice. The record, however, is silent regarding any factual findi ngs by the agencyon these q uestions. 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 forCt. No. 05-00419 Page 14

further consideration consistent with this opinion. The government shall have until November 13, 20 06, to provide a remand determination. Plaintiff shall submit comments on the government’s remanddet erm ination no later than December 4, 2006, and the government shall sub mit 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