Slip Op. 06-25 

UNITED STATES COURT OF INTERNATIONAL TRADE

LADY KELLY, INC., 

 

 Plaintiff, 

v. 

UNITED STATES SECRETARY OF 

AGRICULTURE, 

 

 Defendant. 

Before: Richard W. Goldberg,

 Senior Judge 

Court No. 05-00480 

OPINION

[Defendant’s motion to dismiss is denied. Defendant’s motion 

for judgment on the agency record under USCIT R. 56.1 is 

granted.] 

 Dated: February 24, 2006 

R. Michael Patrick, for plaintiff Lady Kelly, Inc. 

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

Director, Patricia M. McCarthy, Assistant Director, Commercial 

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

(Michael James Dierberg), for defendant United States Secretary 

of Agriculture. 

GOLDBERG, Senior Judge: Defendant United States Secretary of 

Agriculture (“Defendant” or “USDA”) moves the Court to dismiss 

Plaintiff Lady Kelly, Inc.’s (“Plaintiff”) complaint, under 

USCIT R. 12(b)(5), for failure to state a claim upon which 

relief may be granted. Defendant also moves in the alternative 

for judgment on the agency record under USCIT R. 56.1. For the 

reasons that follow, Defendant’s motion to dismiss is denied, 
Court No. 05-00480 Page 2

and Defendant’s motion for judgment on the agency record is 

granted. 

I. BACKGROUND

Plaintiff is a corporation engaged in the shrimping 

business in Georgia. The Foreign Agriculture Service of the 

USDA recertified a petition for trade adjustment assistance 

(“TAA”) filed by the Georgia Shrimp Association (“GSA”) on 

behalf of Georgia shrimpers for the fiscal year 2005. See Trade 

Adjustment Assistance for Farmers, 69 Fed. Reg. 68,303 (Dep’t of 

Agric. Nov. 24, 2004). The effective date of the 

recertification was November 29, 2004. See id. The notice was 

promptly published in the Federal Register, and instructed 

potential applicants that “[s]hrimpers who land their catch in 

Georgia will be eligible to apply for fiscal year 2005 benefits 

during a 90-day period beginning on November 29, 2004. The 

application period closes on February 28, 2005.” Id.

Plaintiff filed an application that was received by the 

USDA’s Wayne County Farm Service Agency office on June 9, 2005, 

more than 180 days after the date of recertification. On July 

21, 2005, Defendant informed Plaintiff that its application for 

benefits had been denied because it failed to file within the 

statutorily prescribed ninety-day window, which had expired on 

February 28, 2005. On August 17, 2005, Plaintiff commenced 

proceedings in this Court, invoking the Court’s jurisdiction 
Court No. 05-00480 Page 3

under 28 U.S.C. § 1581(d), and contending that the application 

was in fact mailed on January 8, 2005, in light of which the 

Court should equitably toll the ninety-day window. 

Plaintiff asserts that it mailed a completed application on 

January 8, 2005, one day after it received the application form 

from GSA. Plaintiff further alleges that in March 2005, its 

owner contacted the relevant Farm Service Agency county office 

to inquire about the status of its application. Plaintiff has 

also introduced evidence in the form of a photocopied envelope, 

with a handwritten note documenting the mailing date of the 

alleged January 8, 2005 application.1

On November 4, 2005, Defendant filed a motion to dismiss, 

or, in the alternative, for judgment based on the agency record 

under USCIT R. 56.1. Both motions draw on the same facts to 

bolster the case for dismissal or entry of judgment on the 

agency record, respectively: namely, Defendant denied Plaintiff 

access to TAA benefits because Plaintiff’s application was late, 

and Plaintiff had not adduced sufficient evidence to demonstrate 

that equitable tolling was appropriate. Plaintiff insists that 

it is entitled to equitable relief in this case. The Court has 

 

1

 The envelope at issue is addressed from GSA to Stewart Sadler, 

Plaintiff’s shareholder. The Court presumes that the envelope 

contained GSA’s notification to Plaintiff of the 

recertification, as well as an application form. Plaintiff did 

not introduce a copy of the envelope it used to mail its 

application to the USDA. 
Court No. 05-00480 Page 4

jurisdiction over the claim under 19 U.S.C. § 2395(a).2 Accord

Ingman v. U.S. Dep’t of Agric., 29 CIT ___, ___, Slip Op. 05-119 

at 5-7 (Sept. 2, 2005). 

II. DISCUSSION

Defendant moves the Court to dismiss for failure to state a 

claim upon which relief may be granted, and for judgment on the 

agency record. The Court will address each defense separately. 

A. Failure to State a Claim 

In ruling on a motion to dismiss for failure to state a 

claim, a court reviews the sufficiency of the complaint, 

assuming all alleged facts to be true, and drawing all factual 

inferences in the plaintiff’s failure, to determine if any set 

of circumstances would entitle the plaintiff to the relief it 

 

2

 Plaintiff’s invocation of 28 U.S.C. § 1581(d) is misplaced. 

That section grants the U.S. Court of International Trade 

(“CIT”) jurisdiction of disputes over certain plaintiffs’ 

“eligibility” for TAA benefits. See 28 U.S.C. § 1581(d)(1)-(3) 

(1999). Notably, 28 U.S.C. § 1581(d) does not mention 

“agricultural commodity producers,” a recently created class of 

beneficiaries that includes Plaintiff. Rather, “agricultural 

commodity producers” may challenge the USDA’s eligibility 

determination by recourse to 19 U.S.C. § 2395(a), which allows 

such plaintiffs to challenge a “determination of the Secretary 

of Agriculture under section 2401b of this title[.]” 19 U.S.C. 

§ 2395(a) (2005). Congress added the language in that statute 

dealing with agricultural commodity producers when it passed the 

Trade Act of 2002, see Pub. L. 107-210, 116 Stat. 933, 953 

(2002). Therefore, the CIT has subject matter jurisdiction over 

USDA TAA cases under 19 U.S.C. § 2395, despite the absence of a 

corollary amendment to 28 U.S.C. § 1581(d) giving the CIT 

jurisdiction over eligibility disputes brought by agricultural 

commodity plaintiffs. 
Court No. 05-00480 Page 5

seeks. See Scheuer v. Rhodes 416 U.S. 232, 236 (1974), 

overruled on other grounds, Davis v. Scherer, 468 U.S. 183 

(1984); Adams v. United States, 391 F.3d 1212, 1218 (Fed. Cir. 

2004); Amoco Oil Co. v. United States, 23 CIT 613, 613, 63 F. 

Supp. 2d 1332, 1334-35 (1999). 

Defendant’s argument has two interdependent prongs: first, 

Plaintiff did not file its application within the ninety-day 

window provided by 19 U.S.C. § 2401e(a)(1); and second, the 

complaint fails to state a claim for equitable tolling. The 

first prong is uncontroversial. Plaintiff does not dispute that 

Defendant first received the TAA application on June 9, 2005. 

Since eligibility for the adjustment assistance disbursed 

pursuant to 19 U.S.C. § 2401e is conditioned on an “adversely 

affected agricultural commodity producer” filing a TAA 

application within ninety days of the date of certification, see

19 U.S.C. § 2401e(a)(1), Plaintiff’s application was received 

more than three months after the statutory ninety-day period had 

passed, and was untimely. 

The second prong, however, is contested. Equitable 

tolling, which allows courts to disregard non-compliance with 

statutes of limitations or deadlines under certain circumstances 

where equity demands, is presumptively available with respect to 

statutes of limitations for filing suits against the government. 

See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96 
Court No. 05-00480 Page 6

(1990). Congress may at any time choose to preclude equitable 

tolling with respect to a statute, and render the statutory 

terms of its waiver of sovereign immunity exhaustive, but in 

such a case a defendant government agency must adduce evidence 

that such Congressional intent existed in order to rebut the 

presumption of availability. See United States v. Brockamp, 519 

U.S. 347, 350 (1997) (examining “Irwin’s negatively phrased 

question: Is there good reason to believe that Congress did not

want the equitable tolling doctrine to apply?”); Irwin, 498 U.S. 

at 95. 

Defendant has produced no such evidence. Previous court 

decisions have repeatedly allowed equitable tolling in TAA 

cases. See, e.g., Former Employees of Sonoco Prods. Co. v. 

Chao, 372 F.3d 1291, 1296-98 (Fed. Cir. 2004) (holding sixty-day 

time limit for filing suit in labor TAA cases may be equitably 

tolled); Former Employees of Quality Fabricating, Inc. v. U.S. 

Sec. of Labor, 27 CIT ___, ___, 259 F. Supp. 2d 1282, 1285-86 

(2003) (equitably tolling the statute of limitations in TAA case 

where Department of Labor made misrepresentations to plaintiff 

about how she was to obtain notice of final determination); 

Former Employees of Siemens Info. Comm. Networks, Inc. v. 

Herman, 24 CIT 1201, 1208, 120 F. Supp. 2d. 1107, 1113 (2000) 

(“Finally, the relevant legislative history fails to disclose 

any intent on the part of Congress to prohibit equitable 
Court No. 05-00480 Page 7

tolling. Indeed, the remedial purpose of the trade adjustment 

assistance program supports the conclusion that equitable 

tolling is available in this context.”) (citation omitted). 

The Court notes that the precise issue in this case is one 

of first impression in the CIT. No court has ruled on whether 

equitable tolling is available with respect to an applicant’s 

failure to comply with 19 U.S.C. § 2401e(a)(1)’s ninety-day 

statutory deadline. The previous cases have all addressed the 

availability of equitable tolling in instances where plaintiffs 

have failed to commence a case in the CIT within sixty days of 

the reviewable determination as required by 19 U.S.C. § 2395(a). 

See 19 U.S.C. § 2395(a) (2005) (“[A plaintiff] 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.”). However, the Court sees no reason why 

this distinction should occasion a different application of the 

equitable tolling standards. The language and structure of 19 

U.S.C. § 2401e are not suggestive of any Congressional intent to 

limit the equitable tolling doctrine. Statutes of limitations 

that are not susceptible to equitable tolling, such as 19 U.S.C. 

§ 1514, are characterized by forceful language that reinforces 

the exclusionary properties of the limitation. See, e.g., U.S. 

JVC Corp. v. United States, 22 CIT 687, 694-95, 15 F. Supp. 2d 

906, 913-14 (1998) (holding equitable tolling of 19 U.S.C. § 
Court No. 05-00480 Page 8

1514’s ninety-day statute of limitations was inappropriate 

because that statute provided that absent protests, decisions by 

Customs Service were “final and conclusive”). Section 2401e, by 

contrast, contains no such language. 

Moreover, the doctrine of equitable tolling is not limited 

to cases where a party fails to commence a timely case before 

courts. Administrative deadlines, like statutes of limitations, 

are susceptible to equitable tolling. See, e.g., Mahmood v. 

Gonzalez, 427 F.3d 248, 251 (3d Cir. 2005) (8 U.S.C. § 1229a’s 

deadline for filing a motion to reopen with an immigration judge 

is subject to equitable tolling); Commc’ns Vending Corp. of 

Arizona, Inc. v. FCC, 365 F.3d 1064, 1075 (D.C. Cir. 2004) (47 

U.S.C. § 415(a)’s two-year deadline for certain actions before 

the Federal Communications Commission may be equitably tolled); 

Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363, 

1367-68 (D.C. Cir. 1998) (42 U.S.C. § 2000e-5(e)(1)’s 

requirement that a plaintiff file an administrative complaint 

with Equal Employment Opportunity Commission within 180 days of 

alleged unlawful practice may be equitably tolled). 

Finally, Defendant seems to agree that equitable tolling is 

at least available in such a case; its motion to dismiss never 

impugns its discretion to toll the ninety-day window, and 

instead focuses on whether exercising such discretion in this 

case would have been appropriate. As such, the Court holds that 
Court No. 05-00480 Page 9

equitable tolling of the ninety-day statutory deadline contained 

in 19 U.S.C. § 2401e(a)(1) is available in appropriate 

circumstances. 

Whereas equitable tolling is available with respect to the 

TAA program, it is only granted sparingly out of deference to 

Congress’ decision to establish a deadline in the first place. 

The exception must not swallow the rule, even in the TAA context 

where Congress has erected an administrative regime to disburse 

benefits to a class of sympathetic plaintiffs with relatively 

little sophistication in matters of federal litigation. 

As a general matter, equitable tolling is available only 

where a plaintiff “has actively pursued his judicial remedies by 

filing a defective pleading during the statutory period, or when 

the complainant has been induced or tricked by his adversary’s 

misconduct into allowing the filing deadline to pass.” Irwin, 

498 U.S. at 96. In other words, equitable tolling may be 

appropriate where a plaintiff has “exercise[d] due diligence in 

preserving his legal rights.” Id.; see also Brandenburg v. 

Principi, 371 F.3d 1362, 1364 (Fed. Cir. 2004). Representative 

examples of a plaintiff’s due diligence include the timely 

filing of a correct complaint in the wrong court, see Burnett v. 

N.Y. Cent. R.R. Co., 380 U.S. 424, 429-30 (1965), or the filing 

of a defective notice of appeal, see Santana-Venegas v. 

Principi, 314 F.3d 1293, 1298 (Fed. Cir. 2002). 
Court No. 05-00480 Page 10

Here, Plaintiff alleges that it mailed a completed 

application on January 8, 2005, one day after it received the 

application form from GSA. Plaintiff has also introduced 

evidence to that effect. Plaintiff further alleges that in 

March 2005, its representative contacted the relevant Farm 

Service Agency county office to inquire about its application. 

Assuming all Plaintiff’s allegations as true, and drawing 

all favorable inferences from those facts, the Court finds that 

Plaintiff has stated a claim upon which relief may be granted. 

If a plaintiff may be entitled to equitable tolling when it 

files a defective pleading, or when it inappropriately files a 

motion for federal relief in state court, it would be 

inequitable to erect an insuperable bar to such relief in cases 

where a plaintiff addresses the correct forms to the correct 

recipient, mails them, but, through no fault of plaintiff’s, the 

forms never arrive. Defendant’s motion to dismiss must 

therefore be denied. 

B. Judgment on the Agency Record 

 As noted above, this case presents an equitable tolling 

issue of first impression. Here, the relevant statutory 

deadline limits applicants’ access to TAA benefits, and has 

nothing to do with a plaintiff’s ability to obtain judicial 

review. The deadline operates at the agency level. As such, 

the USDA has already considered the evidence in favor of 
Court No. 05-00480 Page 11

equitable tolling at the agency level. The Court’s jurisdiction 

under 19 U.S.C. § 2395 is limited to judicial review of the 

“determination” that Plaintiff had filed its application out of 

time, and that equitable tolling was not appropriate in this 

case. 

 In a TAA proceeding, this Court will uphold the USDA’s 

factual findings that are supported by “substantial evidence.” 

See 19 U.S.C. § 2395(b) (2005). Substantial evidence is “such 

relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 

197, 229 (1938). Because the USDA’s decision not to toll the 

statutory deadline appears to have rested on its determination 

that Plaintiff did not exercise due diligence in pursuing its 

rights, the challenged “determination,” 19 U.S.C. § 2395(a), is 

a “factual finding” that will be upheld if “substantial 

evidence” underlies it, id. § 2395(b). See Former Employees of 

Siemens, 24 CIT at 1208, 120 F. Supp. 2d at 1114 (“Whether a 

plaintiff has acted with due diligence is a fact-specific 

inquiry, guided by reference to the hypothetical reasonable 

person.”); cf. Commn’cs Vending Corp., 365 F.3d at 1075 (D.C. 

Circuit upholding the Federal Communications Commission 

determination not to equitably toll 47 U.S.C. § 415(a) because 

agency’s finding that plaintiff had not exercised due diligence 

was supported by substantial evidence). 
Court No. 05-00480 Page 12

 In this case, the absence of any compelling evidence that 

Plaintiff pursued its rights with due diligence led to the 

USDA’s factual finding that equitable tolling was inappropriate. 

The Court is unable to say that the existence of a photocopy of 

an envelope with handwritten annotations relating to the crucial 

events in this action3

 is sufficiently forceful evidence as to 

place the USDA’s conclusion outside the boundaries of 

reasonableness. If Plaintiff had shown the USDA a certified 

mail receipt or registered mail receipt, the Court’s conclusions 

would likely be different. However, the USDA acts well within 

the bounds of reasonableness when it refuses to equitably toll a 

statutory deadline on the basis of a self-serving photocopy that 

an applicant presents. Indeed, to rule otherwise would open a 

loophole in the TAA regime whereby any applicant that allows the 

ninety-day time period to lapse could, provided it produces a 

similar photocopied envelope, obtain access to guaranteed 

benefits at a later date. The current ruling recognizes that 

postal errors do, on occasion, occur, but also encourages future 

 

3

 After surveying Plaintiff’s summons, complaint, and response 

to Defendant’s motions, it is unclear whether Plaintiff ever 

presented the envelope to the USDA personnel reviewing the 

untimely application. If the USDA never saw the envelope, then 

it was not part of the agency record that the Court is currently 

reviewing. Because it makes no difference to the ultimate 

disposition of the Rule 56.1 motion, the Court will assume such 

evidence was available to the USDA personnel, and explain why 

even with such evidence, the USDA’s actions are unassailable on 

judicial review. 
Court No. 05-00480 Page 13

applicants to document those errors by sending their 

applications via certified or registered mail. Defendant’s 

motion for judgment on the agency record is granted. 

III. CONCLUSIONS

 For the foregoing reasons, Defendant’s motion to dismiss is 

denied, and Defendant’s motion for judgment on the agency record 

is granted. An order will be issued dismissing Plaintiff’s 

case. 

 /s/ Richard W. Goldberg

 Richard W. Goldberg 

 Senior Judge 

Date: February 24, 2006 

 New York, NY