Slip Op. # 08-19
UNITED STATES COURT OF INTERNATIONAL TRADE
:
DUS & DERRICK, INC., :
:
Plaintiff, :
:
v. : Before: Richard K. Eaton, Judge
:
: Court No. 05-00346
UNITED STATES SECRETARY :
OF AGRICULTURE, :
:
Defendant. :
:
OPINION
[United States Department of Agriculture’s final determination
granting plaintiff’s application for trade adjustment assistance
affirmed.]
Dated: February 6, 2008
Steven D. Schwinn, for plaintiff.
Jeffrey S. Bucholtz, Acting Assistant Attorney General;
Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice; Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice (Michael J.
Dierberg), for defendant.
Eaton, Judge: In Dus & Derrick, Inc. v. United States
Secretary of Agriculture, 31 CIT __, 469 F. Supp. 2d 1326 (2007)
(“Dus & Derrick I”), this court remanded to the United States
Department of Agriculture (the “Department”) its determination
denying plaintiff’s application for cash benefits under the Trade
Court No. 05-00346 Page 2
Adjustment Assistance (“TAA”) for Farmers program. In its
written opinion, the court concluded that the Department’s
regulations were an impermissible interpretation of Congress’s
clear intent embodied in 19 U.S.C. § 2401e(a)(1)(C)(2002). See
Dus & Derrick I, 31 CIT at __, 469 F. Supp. 2d at 1333.
Specifically, the court found that the Department’s regulations
were unlawful to the extent that: (1) under the facts of this
case, they “provide for the comparison of non-consecutive years
when determining whether a producer has satisfied the statutory
net income requirement;” and (2) they provide for years other
than the “most recent year” and the “latest year” when selecting
the years for comparison.1 Id. at __, 469 F. Supp. 2d at 1335.
Further, the court determined that the Department may not rely
solely on an applicant’s tax returns to deny benefits based on
net income, when other information is properly submitted to the
Department. Id. at __, 469 F. Supp. 2d at 1337-38. The court
remanded the matter to the Department with instructions to
1
The statutory criteria that must be met in order for an
individual producer to receive a cash payment are as follows:
(1) Requirements . . .
(C) The producer’s net farm income (as
determined by the Secretary) for the most
recent year is less than the producer’s net
farm income for the latest year in which no
adjustment assistance was received by the
producer under this part.
19 U.S.C. § 2401e(a)(1).
Court No. 05-00346 Page 3
construct a methodology for considering Dus & Derrick, Inc.’s
(“Dus & Derrick”) application that comported with the court’s
opinion.2 Id. at __, 469 F. Supp. 2d at 1338.
The court now reviews the Department’s remand
determination. See Reconsideration Upon Remand of the
2
The court notes a caveat with respect to the language
found in its previous opinion. In Dus & Derrick I, the court
made the following statements:
For the court, the language of 19 U.S.C.
§ 2401e(a)(1)(C) is clear in its instruction
that consecutive years must be compared when
determining whether a producer has satisfied
the net income requirement.
31 CIT at __, 469 F. Supp. 2d at 1333. And,
[A]t least with respect to individual
applications for benefits made pursuant to
re-certifications, the court finds that the
regulations are not a permissible
interpretation of the statute, which clearly
expresses Congress’s intent that consecutive
years be compared.
Id. at __, 469 F. Supp. 2d at 1335.
There are factual situations, not before this court, to
which these summaries of the law would not apply. Subsection
(a)(1)(C) of 19 U.S.C. § 2401e provides that, as a part of its
application for benefits, a producer must certify that its “net
farm income . . . for the most recent year is less than the
producer’s net farm income for the latest year in which no
adjustment assistance was received by the producer under this
part [19 U.S.C. §§ 2401 et seq.].” (emphasis added).
Thus, in those cases where a producer has not received TAA
benefits in the year previous to the “most recent year,” the
court’s statements remain true. Where benefits have been
received in the year immediately preceding the “most recent
year,” the statute directs the comparison of non-consecutive
years.
Court No. 05-00346 Page 4
Application of Dus & Derrick, Inc. (“Remand Determination”).
Jurisdiction lies under 19 U.S.C. § 2395(c). For the reasons set
forth below, the Department’s Remand Determination is affirmed.
BACKGROUND
The facts of this case are contained in Dus & Derrick I and
need not be repeated here. Nonetheless, the sequence of events
leading to that decision and to plaintiff’s application for cash
benefits remains relevant.
The Texas Shrimp Association (“TSA”) filed a group petition
with the Department in October 2003. See TAA for Farmers, 68
Fed. Reg. 60,078 (Dep’t of Agric. Oct. 21, 2003) (notice). The
Department granted the petition on November 19, 2003. See TAA
for Farmers, 68 Fed. Reg. 65,239 (Dep’t of Agric. Nov. 19, 2003)
(notice) (“Upon investigation, the [Department] determined that
increased imports of farmed shrimp contributed importantly to a
decline in the landed prices of shrimp in Texas by 27.8 percent
during [the] January 2002 through December 2002 [marketing year],
when compared with the previous 5-year [1997 through 2001]
average.”).
On November 30, 2004, using 2003 as the “marketing year,”
the Department re-certified the TSA and its member producers as
eligible to apply for TAA benefits. TAA for Farmers, 69 Fed.
Reg. 69,582 (Dep’t of Agric. Nov. 30, 2004) (notice) (“Upon
Court No. 05-00346 Page 5
investigation, the [Department] determined that continued
increases in imports of like or directly competitive products
contributed importantly to a decline in the average landed price
of shrimp in Texas by 33.7 percent during the 2003 marketing
period (January-December 2003), compared to the 1997-2001 base
period.”). In accordance with the re-certification, producers
such as plaintiff became “eligible to apply for fiscal year 2005
benefits during a 90-day period beginning on November 29, 2004
. . . [and] clos[ing] on February 28, 2005.” Id.
On January 19, 2005, plaintiff, having never applied under
the original certification, applied for benefits for the first
time under the re-certification. See Application for Trade
Adjustment Assistance (TAA) of Dus & Derrick, Inc. (“Pl.’s
Application”), Admin. R. (“AR”) at 1. In reviewing plaintiff’s
application pursuant to its regulations, the Department compared
plaintiff’s net income, as reported on line 28 of its Form 1120
corporate income tax returns, for 2003 as the “marketing year”3
and 2001 as the “pre-adjustment year.”4 See Dus & Derrick I, 31
CIT at __, 469 F. Supp. 2d at 1329-30. On March 7, 2005, the
3
“ Marketing year means the marketing season or year as
defined by National Agriculture Statistic Service (NASS), or a
specific period as proposed by the petitioners and certified by
the Administrator.” 7 C.F.R. § 1580.102 (2005).
4
“ Pre-adjustment year means the tax year previous to that
associated with the most recent marketing year in the initial
producer petition.” 7 C.F.R. § 1580.102.
Court No. 05-00346 Page 6
Department denied plaintiff’s application stating that plaintiff
was “denied a TAA cash benefit because [it] failed to meet the
net income requirement, in accordance with 7 CFR Part
1580.401(e).” See Letter from Ronald Lord, Deputy Director
Import Policies and Program Division to Dus & Derrick, Inc. (Mar.
7, 2005), AR at 55.
The lawfulness of the years compared in determining whether
plaintiff met the net income requirement and the adequacy of the
documentation relied upon by the Department in its net income
analysis were the subjects of the court’s opinion in Dus &
Derrick I. Relying on the plain language of the statute, the
court ordered the Department to disregard its regulations and
directed it to determine if plaintiff’s net income was “less” in
2004 (“the most recent year”) than in 2003 (“the latest year in
which no adjustment assistance was received by the producer”).
Id. at __, 469 F. Supp. 2d at 1334-35; see also 19 U.S.C.
§ 2401e(a)(1)(C). As to the adequacy of the evidence used in the
determination, the court directed that plaintiff be given an
opportunity to place on the record further documents relating to
its 2003 and 2004 income. Dus & Derrick I, 31 CIT at __, 469 F.
Supp. 2d at 1337-38.
On remand, the Department advised plaintiff that it was re-
opening the record and invited plaintiff to submit any additional
documentation that it wished the Department to consider in making
Court No. 05-00346 Page 7
its 2003/2004 net income comparison.5 See Letter from Lana
Bennett, Director, Import and Trade Support Programs Division, to
Dus & Derrick, Inc. (Mar. 20, 2007), Suppl. Admin. R. (“SR”) at
1-2; see also Letter from Lana Bennett, Director, Import and
Trade Support Programs Division, to Dus & Derrick, Inc. (May 2,
2007), SR at 4-5; 7 C.F.R. § 1580.301(e).6
5
Specifically, the Department wrote:
In accordance with the Court’s Order, we are
providing you an opportunity to submit
documentation for our consideration in making
the determination whether the net fishing
income for 2004, the year which the Court
states on page 22 of its Order is the most
recent year, was less than the net fishing
income for 2003, the year which the Court
states is the latest year in which no
adjustment assistance was received by the
producer.
SR at 1. In its Remand Determination, the Department compared
plaintiff’s net income in the years 2003 and 2004 in reaching its
findings. See Remand Determination at 1; Dus & Derrick I, 31 CIT
at __, 469 F. Supp. 2d at 1335 (“A plain reading of the statute .
. . demands that, for an application made in 2005, net income for
2004 (the ‘most recent year’) must be compared to that earned in
2003 (‘the latest year in which no adjustment assistance was
received by the producer’).”) (footnote omitted). Because the
court concluded that a comparison of the years 2003 and 2004 was
required by the statute, and in light of the Department’s
improper reliance solely on line 28 of plaintiff’s tax returns,
it directed that the record be re-opened for additional
information to be submitted. See Dus & Derrick I, 31 CIT at __,
469 F. Supp. 2d at 1338.
6
The Department’s second letter, dated May 2, 2007,
advised plaintiff that it had no information regarding
plaintiff’s 2004 net income, including plaintiff’s 2004 tax
return. SR at 4. This letter also appears to reflect the
Department’s belief that its proposed methodology upon remand
(continued...)
Court No. 05-00346 Page 8
Plaintiff responded to the Department’s letters by a May 30,
2007 letter. See Letter from Susie Jackson, Bookkeeper, to
Import and Trade Support Programs Division (May 30, 2007), SR at
6-7. This letter submitted “additional information” with respect
to plaintiff’s tax return for the calendar year 2004 and
explained plaintiff’s reasons for asking the Department to
consider information other than that found on Line 28 of its tax
returns. See SR at 6-7.
On June 20, 2007, the Department issued its Remand
Determination, finding that plaintiff’s tax returns indicated
that plaintiff’s “net fishing income for 2004, the year which the
Court states is the most recent year, was less than [plaintiff’s]
net fishing income for 2003, the year which the Court states is
the latest in which no adjustment assistance was received by”
plaintiff. Remand Determination at 1. The Department compared
Line 28 of plaintiff’s 2003 tax return (showing plaintiff’s 2003
taxable income before net operating loss deductions and special
deductions) to the corresponding Line 28 of plaintiff’s 2004
return, and concluded that its net income declined between those
years, and thus that plaintiff was eligible for TAA cash
benefits. See id. The Department then found plaintiff eligible
to receive the statutory maximum TAA payment of $10,000.00. Id.
6
(...continued)
comported with the court’s analysis in Dus & Derrick I. See SR
at 4.
Court No. 05-00346 Page 9
at 2.
Plaintiff filed comments to the Remand Determination on July
11, 2007. See Pl.’s Comments Reconsideration Upon Remand (“Pl.’s
Comments”). Plaintiff’s Comments concurred with the results of
the Remand Determination to the extent that the Department found
that plaintiff’s net income declined from 2003 to 2004, and that
plaintiff was eligible to receive $10,000.00 in TAA benefits.
Plaintiff asked the court to issue a final judgment affirming the
Remand Determination’s results and to order the Department to pay
plaintiff $10,000.00.7 See Pl.’s Comments at 1-2.
STANDARD OF REVIEW
This court has “jurisdiction to affirm the action of . . .
the Secretary of Agriculture . . . or to set such action aside,
in whole or in part.” 19 U.S.C. § 2395(c). The Department’s TAA
7
While agreeing with the result, plaintiff appears to
argue that the manner in which the Department arrived at that
result was somehow improper. See Pl.’s Comments 1. The
Department’s July 23, 2007 response, on the other hand, asks for
affirmance on those grounds invoked by the Department. See
Def.’s Resp. Pl.’s Comments Upon Remand (“Def.’s Resp.”) 1, 4.
The Department states that plaintiff did not identify any errors
in the Remand Determination. Def.’s Resp. 3-4. It points to the
Supreme Court’s decision in Securities & Exchange Commission v.
Chenery Corp., 318 U.S. 80, 87-88 (1943), to support the position
that “an agency’s decision generally may only be affirmed upon
the grounds relied upon by the agency.” Def.’s Resp. 3. The
Department is correct in its contention that, because plaintiff
did not identify any errors in its analysis, the court need not
address whether or not the Department’s determination could be
sustained on alternative grounds. Def.’s Resp. 4.
Court No. 05-00346 Page 10
eligibility determination should be upheld if supported by
substantial evidence and otherwise in accordance with law. See
19 U.S.C. § 2395(b). The court “for good cause shown, may remand
the case to [the Department] to take further evidence, and [it]
may thereupon make new or modified findings of fact and may
modify [its] previous action”); Former Employees of Swiss Indus.
Abrasives v. United States, 17 CIT 945, 947, 830 F. Supp. 637,
639-40 (1993). The scope of review of an agency’s actions is
limited to the administrative record. Defenders of Wildlife v.
Hogarth, 25 CIT 1309, 1315, 177 F. Supp. 2d 1336, 1342-43 (2001).
DISCUSSION
Upon remand, the Department was obligated to “adhere closely
to the court’s outstanding order[]. Failure to do so
unnecessarily absorbs the time of counsel and the court, does not
promote respect for the rule of law, and may result in sanctions
in unfortunate cases.” Vertex Int’l, Inc. v. United States, 30
CIT __, __, Slip Op. 06-35 at 1 (Mar. 8, 2006) (not reported in
the Federal Supplement). Here, the Department’s actions upon
remand comported with the court’s opinion in Dus & Derrick I.
This is demonstrated by the Department’s actions in: requesting
more information from plaintiff in its March 20, 2007 letter (see
SR at 1-3); advising plaintiff of its intention to use 2003 and
2004 as the years of comparison (see SR at 4-5); and, explaining
Court No. 05-00346 Page 11
its decision for granting plaintiff’s application in the Remand
Determination.
In addition, while there may be further evidence that could
have supported its findings, the Department has cited evidence
sufficient to satisfy the substantial evidence test. That is,
having found that a comparison of line 28 of plaintiff’s tax
returns for the years 2003 and 2004 demonstrated that plaintiff’s
“net . . . income . . . for the most recent year is less than . .
. for the latest year in which no adjustment assistance was
received by the producer under this part” the Department did not
find it necessary to examine any of the other evidence submitted
by plaintiff. See 19 U.S.C. § 2401e(a)(1)(C); Remand
Determination at 1; see also Former Employees of Merrill Corp. v.
United States, 31 CIT __, __, 483 F. Supp. 2d 1256, 1264 (2007)
(“Substantial evidence must be sufficient to reasonably support
the agency’s conclusion and must be more than a mere scintilla.”)
(citing Ceramica Regiomontana, S.A. v. United States, 10 CIT 399,
405, 636 F. Supp. 961, 966 (1986), aff’d, 810 F.2d 1137 (Fed.
Cir. 1987)) (internal quotations and citation omitted). Thus,
because a comparison of plaintiff’s 2003 and 2004 tax returns is
sufficient to justify a finding that plaintiff satisfied the
requisite decline in net income under 19 U.S.C. § 2401e(a)(1)(C)8
8
See also 7 C.F.R. § 1580.301(e)(4) (requiring plaintiff
to “[certify] that net farm or fishing income was less than that
(continued...)
Court No. 05-00346 Page 12
and, because plaintiff met all the other statutory requirements,
it is eligible to receive TAA benefits.
While the Department has complied with the court’s remand
instructions, it has indicated that it does not agree with the
court’s conclusions in Dus & Derrick I.9 See Remand
Determination at 1. Thus, the Department continues to maintain
that this court must accord Chevron deference to its
interpretation of the statute.10 It is appropriate, therefore,
8
(...continued)
during the producer’s pre-adjustment year”).
9
The Department’s Remand Determination states that the
“agency respectfully disagrees with the Court that 2004
constitutes the most recent year and that 2003 constitutes the
latest year in which no assistance was received by the producer.”
Remand Determination at 1. It indicates that it compared these
years “under protest” and that plaintiff is eligible to receive
cash benefits “[i]f this Court’s decision is the final decision
after all opportunities for appeal have been exhausted.” Id.
10
When a court reviews an agency’s construction of a
statute which it administers, it uses the two-step process set
forth in Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 842–43 (1984) (“Chevron”). The
first step looks at whether Congress has spoken directly to the
issue and the second, where Congress’s intent is unclear, looks
at “whether the agency’s answer is based on a permissible
construction of the statute.” Chevron, 467 U.S. at 842-43. “If
Congress has spoken and its intent is clear, the court and the
agency must give effect to that objective.” Former Employees of
Fisher & Co., Inc. v. United States Dep’t of Labor, 30 CIT __,
507 F. Supp. 2d 1321, 1325 (2006); see also Bd. of Governors of
the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 368
(1986) (stating that a court’s deference cannot allow an agency
to deviate from the clearly expressed intent of Congress). The
only issue then becomes whether the agency’s action contravenes
Congress’s intent. See Adair v. United States, 497 F.3d 1244,
1252 (Fed. Cir. 2007); Agro Dutch Foods Ltd. v. United States, 24
(continued...)
Court No. 05-00346 Page 13
to briefly restate the reasons for the court’s conclusions here.
In Dus & Derrick I, the court instructed the Department to
construct a methodology that would result in a comparison of net
income for 2003 with that of 2004. The court’s instruction was
based on the facts of this case. Here, Dus & Derrick did not
receive any benefits in 2004, the year prior to its application.
As a result, a comparison of consecutive years is directed by the
statute. That is, the statute directs that a producer must
demonstrate that its net income for the “most recent year” is
less than its net income for the “latest year in which no
adjustment assistance was received by the producer . . . .” 19
U.S.C. § 2401e(a)(1)(C) (emphasis added). For the court, this is
a clear statutory direction to the Department to compare 2004
(the “most recent year” to Dus & Derrick’s application) to 2003
(the latest year in which no benefits were received by
plaintiff). Therefore, the court found in Dus & Derrick I, that
“[a]s applied to the facts of this case . . . the language of 19
U.S.C. § 2401e(a)(1)(C) is clear in its instruction that
consecutive years must be compared when determining whether a
10
(...continued)
CIT 510, 515, 110 F. Supp. 2d 950, 956 (2000) (concluding that
Congress’s intent was clear, rejecting plaintiff’s argument to
the contrary, and not reaching Chevron’s second step); Torres v.
Office of Pers. Mgmt., 124 F.3d 1287, 1290 (Fed. Cir. 1997)
(“Because the meaning of the statute is clear and Congress has
spoken, we do not reach [defendant’s] argument regarding the
asserted reasonableness of the agency’s interpretation.”).
Court No. 05-00346 Page 14
producer has satisfied the net income requirement.” Dus &
Derrick I, 31 CIT at __, 469 F. Supp. 2d at 1333.
The court also found that the statute contained the clear
instruction that 2004 and 2003 were the years to be compared.
See id. at __, 469 F. Supp. 2d at 1345 (“A plain reading of the
statute . . . demands that, for an application made in 2005, net
income for 2004 (the ‘most recent year’) must be compared to that
earned in 2003 (‘the latest year in which no adjustment
assistance was received by the producer’).”)(footnote omitted).
As noted, the Department’s regulations provide for a
different comparison. Under the regulations, individual
producers must demonstrate that their net income for the
“marketing year”11 “was less than that during the producer’s
11
Under 7 C.F.R. § 1580.301, the two years that must be
compared are found by referencing the regulation’s definitions.
Pursuant to the regulation, individual producers must “certif[y]
that net . . . fishing income was less than that during the
producer’s pre-adjustment year,” but the regulation does not
itself state which year’s income must be less than that of the
“pre-adjustment year.” See 7 C.F.R. § 1580.301(e)(4). The
definition of “net fishing income,” however, provides guidance.
“Net fishing income means net profit or loss, excluding payments
under [C.F.R. Part 1580], reported to the Internal Revenue
Service for the tax year that most closely corresponds with the
marketing year under consideration.” 7 C.F.R. § 1580.102.
“Marketing year” is defined as “the marketing season or year as
defined by National Agriculture Statistic Service (NASS), or a
specific period as proposed by the petitioners and certified by
the [Department].” 7 C.F.R. § 1580.102. The Department’s TAA
application for individual producers, however, does not use the
term “marketing year,” but instead uses the term “Crop Year,”
though not in its “Producer Certification” provision. See, e.g.,
Pl.’s Application, AR at 1.
Court No. 05-00346 Page 15
pre-adjustment year.” See 7 C.F.R. § 1580.301(e)(4). The
“pre-adjustment year” is defined as “the tax year previous to
that associated with the most recent marketing year in the
initial producer petition.” See 7 C.F.R. § 1580.102. According
to the Department, the “initial producer petition” is “the
initial petition filed by the group of producers, in this case
the Texas Shrimp Association . . . [and] does not refer to the
individual producer’s initial application for benefits.” See
Def.’s Resp. to Pl.’s Mot. for J. Agency R. (“Def.’s Resp. J.
Agency R.”) 8-9. Thus, the regulations direct that Dus &
Derrick’s 2005 application for individual benefits result in a
comparison of 2003, the group’s “marketing year,” to 2001, the
group’s “pre-adjustment year.” As a result, the regulations do
not provide for a comparison of years based on the producer’s
most recent experience, as directed by the statute. Rather, the
regulations make the comparison between the “marketing year” in
the group’s petition for benefits, with the group’s “pre-
adjustment year.” See 7 C.F.R. § 1580.301.
As was stated in Dus & Derrick I:
[T]he court finds that the language of the
statute did not invite the Department to
devise an alternative definition for the
phrase “most recent year.” For the court,
that phrase can only refer to the year
preceding that of the application. The
statutory phrase “is less than” clearly
indicates that a comparison is to be made
between two years. Plaintiff was denied
benefits based on a comparison between 2003
Court No. 05-00346 Page 16
as the marketing year to 2001 as the
pre-adjustment year. A plain reading of the
statute, however, demands that, for an
application made in 2005, net income for 2004
(the “most recent year”) must be compared to
that earned in 2003 (“the latest year in
which no adjustment assistance was received
by the producer”).12
31 CIT at __, 469. F. Supp. 2d at 1335 (footnote omitted). It is
worth noting that the Department does not argue that 2003 is the
latest year for which information was available. Nor does the
Department argue for the reasonableness of its regulation based
on the availability of information or efficiency of
administration. Rather, the Department merely insists that the
years chosen for comparison in its regulations are a reasonable
interpretation of the words of the statute. See generally Def.’s
Resp. J. Agency R. 8-11.
Notwithstanding the Department’s arguments, Chevron
deference does not extend to regulations that clearly violate the
12
As time passes, the Department’s regulations could
produce results unlikely to conform to the TAA’s purposes. See
generally Trade Act of 1974, Pub. Law 93-618, 88 Stat. 1978
(1975). Such results could occur, for example (assuming the
continued existence of the TAA program and that TSA members
remained eligible to apply for benefits), if the Department
continued to re-certify the TSA annually beyond 2005, through
2010. If, in 2011, a producer, who never applied under any
previous certification, applied for benefits under a 2010 re-
certification, the following would occur.
The Department would compare the producer’s net income from
2001, the “pre-adjustment year,” with the “marketing year” that
was used in the petition for re-certification, which would be
2009.
Court No. 05-00346 Page 17
intent of Congress. See Chevron, 467 U.S. at 843 n.9 (“The
judiciary is the final authority on issues of statutory
construction and must reject administrative constructions which
are contrary to clear congressional intent.”). As the Federal
Circuit recently stated:
When Congress has spoken clearly, through the
use of unambiguous words . . . neither [an
administrative agency] nor this Court is
“permitted to substitute [its] own definition
for that of Congress, regardless of how close
the substitution may come to achieving the
same result as the statutory definition, or
perhaps a result that is arguably better.”
See Agro Dutch Indus. Ltd. v. United States, 508 F.3d 1024, 1033
(Fed. Cir. 2007) (quoting AK Steel Corp. v. United States, 226
F.3d 1361, 1372 (Fed. Cir. 2000) (second alteration in original).
CONCLUSION
In accordance with the court’s instructions, the Department
has now compared consecutive years and found that a comparison of
plaintiff’s tax returns for the years 2003 and 2004 demonstrates
a decline in income.
Therefore, for the reasons stated, the Department’s Remand
Determination complies with the remand instructions and is
affirmed.
/s/Richard K. Eaton
Richard K. Eaton
Dated: February 6, 2008
New York, New York