SANDALIO T. ALANIZ, Plaintiff,

v. UNITED STATE S SECRETARY OF AGRICU

LTURE, Defend ant. Slip Op. 06-167 UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Timothy C. Stanceu, Judge Court No. 05-00594

OPINION [Granting defendant’s motion to dismiss as untimely an a ppeal of an agency

determination deny ing a Tr ade Adju stment Ass istance cash benefit] Dated: November 15, 2006 Yormick & Associates, Co., LPA ( Jon P. Yormick

) for plaintiff. Peter D. Keisler , Assistant Attorney Gene ral, David M. Cohen , Director, Patricia M. McCarthy , Assistant Director, Commercial Litiga tion Branch, Civil Division, United States Department of Justice (

Michael J. Dierb erg

); Jeffrey Kahn , Office

of the Ge neral Cou nsel, United Sta

tes Depa rtment of Agric ulture, o f counse l, for de fendant

. Stanceu, Judge: Defendant, the United States Secretary of Agriculture (“the Secre tary”) moves to dismiss for lack of subject matter jurisdiction the action filed by plaintiff Sandalio T. Alaniz (“ Alaniz”) , argu

ing that dismissal is

require d becau se of Ala

niz’s fail ure to fil e a timely appeal of the denial by

the United States Department of Agriculture (“ USDA”) of Alaniz’s application for a cash benefit under the Tra de Adjustment Assistance (“TAA”) for Fa rmers program. Defendant contends that plaintiff f ailed to seek judicial review of the denial within the sixty- day period pr escribe d by

19 U.S.C. § 2 395(a). Althoug h conce ding tha

t his appe al isCourt No. 05-00594 Page 2

untimely , plaintif f argu es that the

doctrine of equita ble tolling

permits hi

m to mainta

in this action. T he court conclude s that equ

itable tol ling is no t warra nted in the se circ

umstance s. I. Backgro und On December 28, 2004, plaintiff, a shrimper from Texas, submitted his application to the USDA for a TAA cash benefit for the 2003 Te xas shrimp marketing yea r. Plaintiff received written notice, by letter

dated May 18, 2005, that USDA was denying his application for a TAA cash benefit (“denial letter”) bec ause plaintiff “did not meet the Net I ncome Requirement according to the Code of Feder al Regulations 7-CFR Part 1580.301.” Le tter from Ronald Ford, Deputy Dir., I mp. Policie s and Prog

ram Div., U.S. Dep’ t of Agr ic., to San

dalio T. Alaniz (May 18, 2005) ( “USDA May 18, 2005 TA A denial letter”). The letter informed plaintiff of the opportuni ty f or judicia l review of the ag ency

determination, sta

ting as f ollows: You may reque st review of our final determination by contacting the United States Court of International Trade , One Federal Plaza, New York, New York 10278-0001. The Office of the Clerk of the Court ca n provide instructions for requesting a judicial review. The Clerk of the Court can be reached at (212) 264-2800 or you ca

n visit the Court’s website http://www.cit.uscourts.gov (select “Trade Adjustment Assistance – Judicial Review”.) Appeals to the Court must be filed within 60 days from the da te of this letter. Prior to contacting the Court of International Trade , you may wish to contact your loca l FSA county offic e if you have que stions abo

ut this disa

pproval o f cash be

nefits. Id . On October 28, 2005, more than three months after the time per iod for filing an appeal had expired, the Clerk of the United States Court of Interna tional Trade (“Clerk of the Court”) deemed filed a letter written by plaintiff requesting an appeal of USDA’s ne gative determination.Court No. 05-00594 Page 3 II. Discussion The plaintiff carries the burden of establishing a basis to invoke a court’s subject matter jurisdiction. See Thomson v. Gaskill , 315 U.S. 4 42, 446 (1 942); Alder Terrace, Inc. v. United States , 161 F.3d 1372, 1376-77 (Fed. Cir. 1998). I n deciding a motion to dismiss, the court accepts as true all facts alleg ed in the plaintiff’s pleadings and construes all rea sonable inferences in the plaintiff’s favor. See Shearin v. United States , 992 F.2d 1195, 1195-96 (Fed. Cir. 1993); see also Bradley v. Chiron Corp. , 136 F.3d 1317, 1321-22 (Fed. Cir. 1998) (noting, howeve r, that unwa rrante d infere

nces of f act do not suffice to support

a claim) . In r

esolving a motion to dismiss for lack of subject matter jurisdiction, a court may refer to documents attached to the pleadings or documents integral to the complaint. Indium Corp. of America v. Semi-Alloys, Inc. , 781 F.2d 8 79, 883-8 4 (Fed. Cir. 1985) ; Holowecki v. Fed. Express Corp. , 440 F.3d 558, 565-66 (2d Cir. 20 06); see also Kamen v. Am. Tel. & Tel. Co. , 791 F.2d 1006, 1011 (2d Cir. 1986). The Supreme Court, in Irwin v. D ep’t of Ve terans Aff airs , 498 U.S. 89, 96 (1990), address ed the ap

plicabili ty o f the doctrine of e quitable tolling in suits betw een priv ate litig ants and the government. I

n considering when the doctrine can a pply ag ainst the government, the Irwin court sta

ted that: Federal courts have ty

pically extended equitable re lief only sparingly. We have allowed equitable tolling in situations where the claimant has actively pursue d his judicial remedies by filing a defective pleading during the statutory

period, or where the complainant has been induce d or tricked by h is adver sary ’s miscond

uct into a llowing t he filing deadline to pass. We ha

ve generally

been muc

h less for giving in rece iving la

te filings where the claimant failed to exercise due dilig ence in preserving his lega l rights. 498 U.S. at 96 (footnotes omitted).Court No. 05-00594 Page 4

The Court

of Appea ls for the Feder al Circui t has appl ied the two-part Irwin test to determine both the level of diligence and the ty pe of governmental action nece ssary to invoke equitable tolling. Frazer v. United States , 288 F.3d 1347, 1352-54 (Fed. Cir. 2002). The Court of Appeals declined to apply equitable tolling in Frazer , concluding that the plaintiffs did not exercise due diligence because the y neglected to file their complaint in the Court of Federal Claims within the applicable six-year statute of limitations period. Id. at 1353. The Court then concluded that the plaintiffs failed to allege the ty pe of government action necessa ry to invoke equitable tolling. Id. at 1353-54. In drawing this conclusion, the Court distinguished between timely-filed but defec

tive submissions and untimely filed submissions, explaining that governmental misconduct is essential to equitable tolling in the latter situation. Id. “In the event of late-filed submissions, equitable tolling is available only when the lateness is attributable, at least in part, to misleading governmental action.” Id. “Timely filed but defe ctive submissions differ; the defect need not nece ssarily be due to misleading governmental conduct.” Id. at 1353 n.3. Because the Court did not find governmenta l action that reasonably

could have misled the appellants, it declined to toll the statute of limitations. Id. at 1354-5 5; see also Former Employees of Sonoco Prods. Co. v. Chao , 372 F.3d 1291, 1299 (Fed. Cir. 2004) (citing both Irwin and Frazer

for the principle

that, in the

case of untimely filed sub missions, e quitable tolling requires a showing of gove rnmental misconduct or misleading action). Here, plaintiff admits that he did not timely file his c omplaint within sixty days a fter notice of USDA’s final determination. See Pl.’s Mem. of La w Respond

ing to De f.’s Mot. to Dismiss 2 ( “Pl.’s Res

p.”). Ac cordingly, equitabl e tolling is inapplic able unless plaintiff shows that governmental misconduct or misleading g overnmental actionCourt No. 05-00594 Page 5

contributed to his late filing. See Frazer , 288 F.3d at 1353; Former Em

ployees of SonocoProds. Co. , 372 F.3d at 1299. Alaniz alle ges tha

t the deni al letter

was “inte rnally inconsiste

nt” and “ confusin

g” in explaining

the rig ht to appe al the de cision. Pl. ’s Resp. 3 . The den ial lette r, according to plaintiff, contains only “a br ief, almost unnoticeable sentence” reg arding the process and timeline for filing the judicial appeal. Id. (“The U SDA first r efere nced its d etermina tion using no less than three (3) different descriptive wor ds, before it referred to a review of its determination by this Court, but without any express referenc e to the period of time by w hich a request

for that
review should be made.”). Plaintiff further argue s that the suggestion in the denial letter that he

contact the loca l Farm Se rvice Agency

(“FSA” ) office

with quest

ions was inappropr

iate bec ause FSA could

not file the appea

l on his behalf and b ecause contact ing FSA would only

result in further delay

. Id. at 4. The denial letter does not support a finding of misleading c onduct on the part of the government. Plaintiff’s principal argument a ppears to stem from the use in the denial letter of the terms “review of our final determination” and “ judicial review,” followed by later use of the term “appeals” in describing the sixty -day time limit. See USDA May 18, 2005 TAA de nial letter. H owever , the deni al letter states unambiguo

usly in the fou

rth para graph that “[a]pp eals to the Court must be filed within 60 days from the date of this letter.” Id. No recipient of a negati ve TAA de

terminat ion reas onably

could con

clude tha t he was not

required to accomplish a filing with the Court of International Tr ade within sixty days of the date of the denial letter, even if he did not know from the denial letter precisely what the filing would entail. As to what was required to accomplish the filing, the denial letter also provided a telephone number and webCourt No. 05-00594 Page 6

address as references f

or additional information. Were plaintiff actually confused by the

use of the terms “review” and “appea l,” or by any

other aspect of the denial letter, plaintiff could have contacted the Clerk of the Court or consulted the court’s website. Althoug h the letter used the term “review” and also the term “appe al,” it used each term correctly , and in the context of the den ial let ter th e us e of

th ese di ffe ren t t erm s ca nno t re aso nab ly be cha rac ter iz ed a s m is lea di ng. In a declaration, plaintiff’s wife, Betty Alaniz, confirms that she was able to follow the directions of the denial letter by c ontacting the court, albeit three months too late, to inquire about her husba nd’sappl icat

ion for a TA

A ben efit . Pl.’ s Resp ., Ex. 1 ¶¶ 6- 7; De cl. B etty Alan iz, June 23, 2006. Plaintiff’s objection that the denial letter contained an inappropriate suggestion to contact the local FSA office is also unconvincing. Plaintiff’s arg uments that the FSA could not file the approval on his behalf, and that contacting the F SA would only have resulted in fur ther delay, a

re irrelevant to the issue of whether the denial letter is misleading . The court finds nothing misleading about the suggestion to contact the F SA. In short, the denial letter provided plaintiff w ith sufficient information of the requirement of a timely appea

l and contained no misinformation. To require any more from USDA than the information that was included in the denial letter would be tantamount to “impos[ing] upon the [agency ] the type of affirma

tive obligations found in an attorney-client relationship.” Former Employees of Sonoco Prods. Co. , 372 F.3d at 1299 (r

efusing to apply the doctr ine of eq uitable tolling and stating that the government was not re quired to inform plaintiff of the publication procedures of the U.S. Department of Labor or of the implications of publication for trigge ring the running of the limitations period).Court No. 05-00594 Page 7

Plaintiff also cont ends that the cour t may equitabl y to ll the stat

ute of limi

tations wi thout a showing of wrongful conduct on the par t of the government provided that the plaintiff demonstrates excusable delay . Pl.’s Resp. 2-3. Plaintiff appears to rely on the following language in Former Employees of Quality Fabricating, Inc. v. the U.S. Sec’y of Labor : The Supreme Court in Irwin stated tha t equitab le tolling

was ge nerally allowed where a complainant was “induce d” by his adversary’s misconduct into allowing a filing deadline to pass. 498 U.S. at 95-96, 111 S. Ct. 453. However, equitable tolling does not depend on the defendant’s wrongful conduct; it focuses on w hether there was an “excusable delay

by the plaintiff” in bringing a claim. Santa Maria v. Pacific B ell , 202 F.3d 1170, 1178 (9th Cir. 2000). 27 CIT __, __, 259 F. Supp. 2d 1282, 1285 (2003). I n relying on the statement in Quality Fabricating

that “eq uitable to lling doe s not depe nd on the d

efenda nt’s wron gful conduct; it focuses on whether there was an ‘e xcusable delay by

the plaintiff’ in bringing a claim,” plaintiff overlooks the point that the Court in Quality Fabricating found action on the part of the
govern ment t hat in duced the la te fil ing. Quality Fabricating involved a group of former employ ees that filed a petition with the Department of Labor

(“Labor”)

for North American Free Tr ade Transitional Adjustment Assistance. Id. at 1283. One of the plaintiffs in the case, Marga ret Miller, diligently monitored the petition and was instructed by L abor employee s that she should check for the petition status on the Labor’s website. Id. When Labor’s final determination on the pe tition was complete, however, Labor published the status determination in the Federal Register and did not post it on the agency

website until two months later. Id. at 1284. As a result, Ms. Miller missed the deadline to appeal the negative ag ency de termination despite contacting La bor’s regional office, regularly checking the status of the petition on L abor’s website, visiting the Department’s TradeCourt No. 05-00594 Page 8

Adjustment Representative, and contacting her cong ressional representatives as to the status of the petition. Id. at 1283-84. The Court in Quality Fabricating concluded that the case presented equitable circumstances meriting the tolling of the statute of limitations. Id. at 1286-87. The Court found that the “uncontroverted facts” in the case showed that, despite Ms. Miller’s diligent attempts t o follow he

r case, the gov ernment

had induc ed her in

to allowin

g the fi ling dea

dline to
pass. Id. Because the plaintiff had satisfied the two-pa rt test of Irwin– showing both misleading action on the part of the government and due dilig ence in preserving her legal rights–the Court tolled the statute and permitted the plaintiff to appeal the agenc y finding. Id. at 1288. Plaintiff next argues that he, through both his own efforts and the e fforts of his wife, exercise d due dilig ence in p ursuing his TAA cl aim. Plaint

iff, howe ver, has not allude d to specific evidenc e of due d

iligenc e. Whethe

r a plain tiff has a cted with due dilig ence is a

factspecific inquiry that is g

uided by ref

erence to the hy

pothetical reasonable person. See Dodds v. Cigna Sec., Inc. , 12 F.3d 346, 350 (2d Cir. 1993). For equitable tolling to apply, the plaintiff must remain ignorant of necessary information or requirements despite exercising diligence

. See Haekal v. Refco, Inc. , 198 F.3d 37, 43 (2d Cir. 1999). The doctrine is not to be applied “to what is at best a garden variety claim of excusable neglect.” Irwin , 498 U.S. at 96. Plaintiff contends in his October 26, 2005 letter to the Clerk of the Court that he mailed a timely appeal b ut that “f or some r eason” t he court did not re ceive hi s paperwork and su gges ts that the paperwork was “lost or misplaced” by the post office. Pl.’s Letter of Appe al (“Pl.’s Letter”). Plaintiff off ers no evidence and pleads no specific f acts to support the statement in his letter that, although he attempted to file his appeal, his paperwork wa s lost or misplaced by the post office. See, e.g. Lady Kelly, Inc. v. U. S. Sec’y of Agric. , 30 CIT __, __, 427 F. Supp. 2dCourt No. 05-00594 Page 9

1 Althoug

h the plai ntiff in th is case w as out at s ea when the TAA d

enial let ter arr ived, his wife’s declaration makes clear tha t she was able to contact him to inform him of USDA’s decision. Accordingly , the court need not address, in this decision, the situation of a fisherman who is unreachable at sea and there fore cannot receive notice fr om the USDA in a manner that will enab le him to fi le a timel y a ppeal of the denia l of his TAA

benefit s. 1171, 1173-77 (2006) (refusing to toll the statute of limitations where USDA never received plaintiff’s application for a TAA benefit, but plaintiff asserted tha t it had timely mailed a completed application and submitted “evidence in the form of a photocopie d envelope, with a handwritten note documenting the mailing date of the a lleged . . . application.”). The court may not assume diligence based on unwarrante d inferences of fact. See Bradley , 136 F.3d at 1321-22. Plaintiff also contends that his wife, Betty Alaniz, attempted to file a timely appea l but was unsuccessful because she was una ble to obtain the necessary assistance from plaintiff’s company, Z imco Marine, or from the local FSA office. Pl.’s Resp. 5-6. Ac cording to her declaration, Ms. Alaniz made several efforts to file an a ppeal within the statutory period. She explains that upon receiving the denial letter, she failed to contac t FSA with questions about the denial because she “knew that they would not be able to assist [her].” Pl.’s Resp., Ex. 1 ¶ 2. She avers that she spoke with her husband about the proper c ourse of action while he was at sea, approximately three we eks after receiving the de nial letter. 1 Id. at Ex. 1 ¶ 3. She further avers that upon her husband’s suggestion, she provided a representative at his company with the letter at some indefinite point in time, only to be informed one month later tha t the representative had quit her job and that the representative would therefore not provide Ms. Alaniz with assistance. Id. at Ex. 1 ¶¶ 3-5. Ms. Alaniz does not indicate in her declaration what additional efforts she made to obtain the company ’s assistance.Court No. 05-00594 Page 10

The efforts of Ms. Alaniz are comparable to, and ma y even fa ll short of, those found inadequate in Leonard v. Gober , in which the Court of Appeals for the Federal Circuit af firmed the ref usal of th e United S tates Cour t of Appe als for V eteran s Claims to e quitably toll the sta

tute of limitations for a plaintiff appealing a nega tive decision by the B oard of Veterans Appeals. 223 F.3d 1 374, 1375 (

Fed. Cir . 2000) . T

he Court o f Appea

ls for Ve terans Cl aims ref

used to tol l the statute of limitations even though the appeal was only one day late

and despite plaintiff’s assertion that the

late filin g was “ bey ond her c ontrol” b ecause

she “ask ed the Ame

rican Legion to help her with her c laim, but [] the y di d not resp ond to her

request for two months and di d not tell her that they would not help he r until twelve days bef

ore the statutory de adline date.” Id. The efforts of plaintiff and his wife do not rise to the level of diligenc e that could serve as a partial justification for the application of the doctrine of equitable tolling. III. Conclusion Equitable relief is applied only in rare circumstances and cannot be e xtended to cover the circumstances present in this case. Bec ause of the absence of misleading a cts or misconduct by the government contributing to the untimely filing, and the lack of due diligence by the plaintiff, the court concludes that the doctrine of equitable tolling is inapplicable. T he denial letter was not misleading and was sufficient to put plaintiff on notice that he must appeal the ag ency’s decision within sixty day s of the date of the letter. Plaintiff cannot avoid the consequenc e of the sixty- day limitation b ased on a

llegat ions that b oth he and

his wife a

ttempted d

iligentl y, a lbeit unsuccessfully, to appe al the decision, because his allegations are unsupported by the plea

dingCourt No. 05-00594 Page 11

and the evidence. Judgment dismissing this action for lack of subject matter jurisdiction will be

en te re d a cc or di ng ly.
/s/ Timothy C. Stanceu Timothy C. Stanceu Judge Dated: November 15, 2006 New York, New York