Durfey v. United States Sec'y of Agric., No. 06-00316 (Ct. Int'l Trade 2007)
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The court issued a subsequent related opinion or order on September 3, 2008.
The court issued a subsequent related opinion or order on May 22, 2008.
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SLIP OP. 07-89 UNITED STATES COURT OF INTERNATIONAL TRADE ------------------------------x DURFEY, et. al : : Plaintiffs, : : v. : : : UNITED STATES SEC Y : OF AGRICULTURE, : : Defendant. : ------------------------------x Before: Pogue, Judge Court No. 06-00316 [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, : : v. : : : UNITED STATES SEC Y : OF AGRICULTURE, : : Defendant. : ------------------------------x Before: Pogue, Judge Court No. 06-00316 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
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