Slip Op. 09-84
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Nicholas Tsoucalas, Senior Judge
________________________________________
:
JENNIFER DEPERSIA, :
:
PLAINTIFF, :
:
v. : Court No. 08-00115
:
UNITED STATES, :
:
DEFENDANT. :
________________________________________:
OPINION
Held: Plaintiff’s Motion for Judgment on the Agency Record is
denied. The determination by the Assistant Secretary, Department of
Homeland Security is affirmed.
Dated: August 11, 2009
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, (David M.
Murphy; Frances P. Hadfield; Michael J. Khorsandi) for Jennifer
Depersia, Plaintiff.
Tony West, Assistant Attorney General; Barbara S. Williams,
Attorney-in-Charge, International Trade Field Office; Saul Davis,
Civil Division, Commercial Litigation Branch, United States
Department of Justice; Of Counsel, Christopher Chen, Office of the
Chief Counsel, United States Customs and Border Protection, for the
United States, Defendant.
Tsoucalas, Senior Judge: Plaintiff moves for judgment upon the
agency record, pursuant to Rule 56.1 of the Rules of the United
States Court of International Trade (“USCIT”), seeking review of
the denial of her application for a customs broker’s license, which
was based on her failure to achieve a passing score of 75% on the
requisite examination. Specifically, Plaintiff petitions this
Court No. 08-00115 Page 2
Court for reversal of a decision by the Assistant Secretary of
Homeland Security (“the Secretary” or “DHS”) affirming the denial
of credit for her answer to one examination question. Defendant
has filed a response in opposition, seeking that the Court uphold
the Secretary’s decision. For the reasons stated below,
Plaintiff’s Motion for Judgment on the Agency Record is denied.
BACKGROUND
Plaintiff sat for the April 2, 2007, administration of the
Customs Broker License examination. In a letter dated June 22,
2007, the United States Customs and Border Protection1 (“Customs”
or “CBP”) advised Plaintiff of her score of 71.25% (57 correct
answers) on the examination, whereas a minimum passing grade of 75%
(60 correct answers) or higher was required.2 On July 24, 2007,
Plaintiff wrote a letter to the Broker Management Branch of Customs
challenging CBP’s grading of four test questions. Customs notified
Plaintiff on November 9, 2007, that her appeal as to all challenged
questions was denied. In its letter, Customs included an
1
Customs was transferred to DHS effective March 1, 2003, as
a result of the reorganization of various federal agencies under
the Homeland Security Act of 2002. See Homeland Security Act of
2002, Pub. L. No. 107-296, 116 Stat. 2178 (2002).
2
The examination is administered by Customs on the first
Mondays in April and October pursuant to its statutory authority
under 19 U.S.C. § 1641(b)(2), and is “designed to determine the
individual’s knowledge of customs and related laws, regulations
and procedures, bookkeeping, accounting, and all other
appropriate matters necessary to render valuable service to
importers and exporters.” 19 C.F.R. § 111.13(a)-(b).
Court No. 08-00115 Page 3
explanation of the single correct answer and several incorrect
answers for every question that Plaintiff challenged.
By letter of December 26, 2007, Plaintiff next sought to have
the matter reviewed by DHS. The Director of Cargo, Maritime and
Trade Policy informed Plaintiff of its determination to affirm the
denial of credit for the four contested questions in a letter dated
February 19, 2008. Suit in this Court subsequently followed when
Plaintiff filed her summons and complaint on April 9, 2008,
followed by an amended complaint on April 14, 2008. Plaintiff
challenges the Secretary’s denial of her score on the April 2, 2007
examination, specifically question 9.3 Plaintiff further moves for
relief under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §
2412(d), for attorney’s fees and expenses.
JURISDICTION AND STANDARD OF REVIEW
The Court has exclusive jurisdiction over this matter pursuant
3
As originally commenced, this action included two other
plaintiffs besides Ms. Depersia. The original complaint
challenged questions 9, 17, and 19. See Complaint p. 9. However,
on January 16, 2009, the parties agreed to settle as to questions
17 and 19 in favor of plaintiffs. While this settlement resulted
in passing grades for two of the plaintiffs, Ms. Depersia’s score
on the examination changed from 57 correct answers or 71.25% to
59 correct answers or 73.75%, still short of the requisite 75%.
The Court takes this opportunity to note that both parties state
Plaintiff’s refigured score at 71.25%. See Def.’s Mem. Opp’n
Pl.’s Mot. Summ. J. (“Def.’s Mem.”) at 3; Mem. Supp. Pl.’s Mot.
Summ. J. (“Pl.’s Mem.”) at 2. This is in part due to the fact
that the stipulation agreement reflects this incorrect
calculation. However, as the Defendant acknowledges, the test
consists of 80 multiple choice questions worth 1.25 points each.
See Def.’s Mem. at 2. Therefore, Plaintiff’s revised score of 59
correct answers is more accurately calculated at 73.75%.
Court No. 08-00115 Page 4
to 28 U.S.C. § 1581(g)(1) (2006). Regarding the appropriate
standard of review, the statute provides that “[t]he findings of
the Secretary as to the facts, if supported by substantial
evidence, shall be conclusive.” 19 U.S.C. § 1641(e)(3).
Substantial evidence includes “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951). This is
something less than the weight of the evidence, and the possibility
of drawing two inconsistent conclusions from the evidence does not
prevent the agency’s finding from being supported by substantial
evidence. See Boynton v. United States, 517 F. Supp. 2d 1349, 1351
(internal citations omitted).
While the factual findings of the Secretary must be based on
substantial evidence, both 19 U.S.C. § 1641 and 28 U.S.C. § 2640
are silent as to the standard of review the Court should apply to
legal questions in a customs broker’s license denial case.
Therefore, in reviewing legal questions, the Court is guided by the
Administrative Procedure Act (“APA”) “which gives general guidance
regarding the scope and standard of review to be applied in various
circumstances.” United States v. Ricci, 21 CIT 1145, 1146, 985 F.
Supp. 125, 126 (1997); see also O’Quinn v. United States, 24 CIT
324, 325, 100 F. Supp. 2d 1136, 1137 (2000). Under the standard
laid out in the APA, the Court will uphold the final administrative
determination of the Secretary, unless the decision was “arbitrary,
Court No. 08-00115 Page 5
capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A) (2006). “When applied to agency
action independent of review of findings of fact, the arbitrary and
capricious test requires that the agency engage in reasoned
decision-making in grading the exam.” O’Quinn, 24 CIT at 325, 100
F. Supp. 2d 1136, 1138 (internal citations omitted).
DISCUSSION
Consistent with the broad powers vested in the Secretary for
licensing customs brokers under the statute, is the authority to
deny an application for a license based on the failure to pass the
licensing examination. See Kenny v. Snow, 401 F.3d 1359, 1361
(Fed. Cir. 2005) (“Among the lawful grounds for denying a license
is the failure to pass the licensing examination.”). 19 U.S.C. §
1641(b)(2) provides that:
Before granting the license, the Secretary may require an
applicant to show any facts deemed necessary to establish
that the applicant is of good moral character and
qualified to render valuable service to others in the
conduct of customs business. In assessing the
qualifications of an applicant, the Secretary may conduct
an examination to determine the applicant’s knowledge of
customs and related laws, regulations and procedures,
bookkeeping, accounting, and all other appropriate
matters.
In its administration of this statutory provision Customs has
promulgated regulations governing the conduct of the customs
broker’s license exam. See 19 C.F.R. § 111.11(a)(4) (“to obtain a
broker’s license, an individual must . . . attain[] a passing (75
percent or higher) grade on a written examination”); 19 C.F.R. §
Court No. 08-00115 Page 6
111.16(b)(2) (“grounds sufficient to justify denial of an
application for a license include . . . [t]he failure to meet any
requirement set forth in [19 C.F.R.] § 111.11.”).4
In reviewing the Secretary’s decision to deny Plaintiff’s
application for a license, the Court “must necessarily conduct some
inquiry into plaintiff’s arguments and defendant’s responses”
concerning the question at issue. Di Iorio v. United States, 14
CIT 746, 747 (1990). Although the Court reviews the exam question
being challenged, the “[p]arties should not conclude from the
court’s detailed examination of the test answers that the court is
some kind of final reviewer of the [exam].” Id. at 752. With this
in mind, the Court turns to Plaintiff’s challenge of question 9.
The exam instructs applicants to choose the best answer from
among the five alternatives presented. See Def.’s Mem. at 2.
Question 9 requires the examinee to assess the type of ruling an
importer is entitled to given a specific factual situation. The
question reads as follows:
Question 9
4
The relevant regulations also provide:
If an examinee fails to attain a passing grade on the
examination taken under this section, the examinee may
challenge that result by filing a written appeal with
[Customs] . . . . CBP will provide to the examinee written
notice of the decision on the appeal. If the CBP decision on
the appeal affirms the result of the examination, the
examinee may request review of the decision on the appeal by
writing to the Secretary of Homeland Security . . . . 19
C.F.R. § 111.13(f).
Court No. 08-00115 Page 7
In the following scenario, what type of ruling is the importer
entitled to?
• CBP has rejected the importer’s claim as to the tariff
classification of green olives grown in Spain.
• Entries filed for these ongoing shipments have NOT been
liquidated.
• Proposed rate advances (CBP Form 29) will result in
substantial duty increases.
• A ruling has NOT been requested or issued on these import
transactions.
A. A Ruling request submitted to the National Commodity
Specialist Division
B. A NAFTA Advance Ruling request forwarded to CBP
Headquarters
C. A protest application for further review filed at the CBP
port of entry
D. An Internal Advice request submitted through the CBP port
of entry
E. The importer is not entitled to request a ruling from CBP
on this transaction
The official answer to question 9 is (D). Plaintiff in turn
selected (A), and claims that she was improperly denied credit for
her answer in large part because of how the word “entitled” was
construed by Customs. According to Plaintiff, this term, as used
in question 9, speaks to an action that the agency must take.
Therefore, if Customs’ proposed answer (D) is deemed correct, the
action that CBP must afford the requesting importer is Internal
Advice.5 See Pl.’s Mem. at 5. Plaintiff points to § 177.11(b)(5)
5
The Internal Advice provision reads in part:
(b) Certain current transactions -
(2) When no ruling has been issued. Internal advice will be
sought by a Customs Service field office with respect to a
current transaction for which no ruling was requested or
(continued...)
Court No. 08-00115 Page 8
which describes the conditions under which Customs may refuse to
issue Internal Advice to a requesting importer.6 See Pl.’s Mem. at
5. Therefore, Plaintiff argues, an importer is never entitled to
such advice, but rather “an internal advice ruling may be
requested.” Id.
On the other hand, because the question’s hypothetical facts
indicate that the shipments at issue were “ongoing,” it is
Plaintiff’s contention that the importer would be entitled to
submit a tariff classification ruling request to the National
Commodity Specialist Division, as described in answer choice (A).
5
(...continued)
issued under the provisions of this part whenever a
difference of opinion exists as to the interpretation or
proper application of the Customs and related laws to the
transaction, and the field office is requested to seek such
advice by an importer or other person who would have been
entitled, under § 177.1(c), to request a ruling with respect
to the transaction, while prospective. The request must be
submitted to the field office in writing and in accordance
with the provisions of paragraph (b)(3) of this section. 19
C.F.R. § 177.11(b)(2).
6
19 C.F.R. § 177.11(b)(5) provides:
(5) Refusal by Headquarters Office to furnish advice. The
Headquarters Office may refuse to consider the questions
presented to it in the form of a request for internal advice
whenever (i) the Headquarters Office determines that the
period of time necessary to give adequate consideration to
the questions presented would result in a withholding of
action with respect to the transaction, or in any other
situation, that is inconsistent with the sound
administration of the Customs and related laws, and (ii) the
questions presented can subsequently be raised by the
importer or other interested party in the form of a protest
filed in accordance with the provisions of part 174 of this
chapter.
Court No. 08-00115 Page 9
Id. at 4; see also 19 C.F.R. § 177.2(a) (“Requests for tariff
classification rulings should be addressed to the Director,
National Commodity Specialist Division . . .”); § 177.2(b)(2)(B)
(“Rulings issued by the Director, National Commodity Specialist
Division . . . are limited to prospective transactions.”). In
focusing on the stem of question 9 which asks, “what type of ruling
is the importer entitled to?” the Plaintiff alleges that the word
“entitled” operates to describe the importer’s right to receive a
classification ruling, as opposed to the discretionary authority of
Customs in providing Internal Advice. See Pl.’s Mem. at 8.
Plaintiff further notes that even if the official answer is deemed
correct, her answer was also an appropriate response to question 9.
See id.
Defendant explains that answer choice (D) is correct “because
an examination of the question as a whole clearly shows that the
olives at issue in the question had already been entered, though
not liquidated, and that the importer’s current claim was
rejected.” Def.’s Mem. at 8. Thus, while there were continuing
importations of subject merchandise, the importer was “entitled” to
seek a request for Internal Advice because “the importer furnished
CBP with proper grounds for seeking a ruling through the internal
advice procedure.” Id. at 10. According to Customs, Plaintiff
failed to glean from the information provided, the essential facts
relevant to existing transactions, and instead chose to focus on
Court No. 08-00115 Page 10
the abstracts of future imports. See id. at 13. Moreover,
Defendant argues, Plaintiff’s theory is flawed for exactly the same
reason she opposes Customs’ proposed answer choice. See id. at 11.
The regulations clearly state that where a request for a
prospective ruling is made to the Director, National Commodity
Specialists Division, under 19 C.F.R. § 177.2(b)(2)(ii), there are
instances where Customs may refuse to issue a ruling of this kind.
Specifically, § 177.7(a) and (b) describe the circumstances under
which Customs may refuse to consider such a request.7 Therefore,
Defendant asserts, Plaintiff’s answer (A) suffers from the same
inadequacies Plaintiff ascribes to CBP’s answer (D). See id.
Plaintiff’s position on this issue is internally inconsistent.
For instance, Plaintiff insists that the lexicographic authorities
compel an interpretation of the word “entitled” as one that gives
7
The relevant portions of 19 C.F.R. § 177.7 read as
follows:
Situations in which no ruling will be issued.
(a) Generally. No ruling letter will be issued in response
to a request for a ruling which fails to comply with the
provisions of this part. Moreover, no ruling letter will be
issued . . . in any instance in which it appears contrary to
the sound administration of the Customs and related laws to
do so.
(b) Pending litigation in the United States Court of
International Trade. No ruling letter will be issued with
respect to any issue which is pending before the United
States Court of International Trade, the United States Court
of Appeals for the Federal Circuit, or any court of appeal
therefrom.
Court No. 08-00115 Page 11
“a right or legal title to: qualify one for something: furnish with
proper grounds for seeking or claiming something.” Pl.’s Mem. at
5. As used in question 9, Plaintiff maintains, the word “entitled”
compels issuance of a ruling to a requesting importer. See id. In
this way, the discretionary authority granted the Secretary, under
§ 177.11(b)(5), to decline an importer’s request for Internal
Advice is inconsistent with this interpretation, and therefore the
importer is only entitled to make a request for, not actually
receive the Internal Advice. Yet, when it comes to her advocacy of
answer choice (A), Plaintiff ignores the distinction she draws
between the type of ruling an importer is entitled to request and
the type of ruling an importer is entitled to receive. Instead,
Plaintiff avers, the hypothetical importer is entitled to submit a
request for a binding ruling to the National Import Specialist
Division because the question indicates that there are “ongoing”
shipments of subject merchandise. See Pl.’s Mem. at 6. As support
for her position, Plaintiff points to Customs’ own summary of the
District Ruling program which observes that “‘the program bestows
a right upon the importing public’ to submit requests for
classification rulings.” Id. at 7 (quoting 54 Fed. Reg. 8,209
(Feb. 27, 1989)). Plaintiff’s claim that an importer is entitled
to make a tariff classification request to the National Commodity
Specialist Division, however, suffers from the same faulty logic
she imputes to Customs. If, as Plaintiff asserts, the word
Court No. 08-00115 Page 12
“entitled” can only be construed as bestowing a right to receive a
ruling, her charge that answer (A) is more accurate because it
provides the importer a right to submit a request for a ruling
makes no sense.
One need only examine Customs’ regulations to observe that a
tariff classification ruling may be withheld if certain conditions
are met. See 19 C.F.R. § 177.7(a) (“Moreover, no ruling letter
will be issued with regard to transactions or questions which are
essentially hypothetical in nature or in any instance in which it
appears contrary to the sound administration of the Customs and
related laws to do so.”). This decision is left up to the
discretion of the agency in much the same way as it is under § 177.
11(b)(5) (the Internal Advice provision).
Equally unpersuasive is Plaintiff’s attempt at distinguishing
the discretionary components of the Internal Advice and tariff
classification procedures by arguing that “Customs may refuse to
furnish internal advice on discretionary grounds, whereas a refusal
to furnish a binding ruling must be based upon the actions of a
party other than Customs.” Pl.’s Reply in Supp. Mot. J. Agency R.
(“Pl.’s Reply”) at 7. This oversimplification of the regulations
ignores the fact that both § 177.11(b)(5) and § 177.7 (binding
ruling procedure) contain identical language permitting Customs to
refuse to consider an importer’s request in any situation in which
such a request would appear contrary to “the sound administration
Court No. 08-00115 Page 13
of the Customs and related laws.” 19 C.F.R. §§ 177.11(b)(5),
177.7. Clearly, both provisions afford CBP a degree of latitude in
making determinations based upon certain criteria. The failure to
recognize, in her own answer choice, the deficiencies which form
the basis of her challenge to Defendant’s proposed answer
undermines the premise of Plaintiff’s complaint.
The Court therefore agrees with Defendant that this aspect of
Plaintiff’s reasoning is unsound in that “under Ms. Depersia’s
theory, her proposed answer “A” would be incorrect for the same
reasons she contends “D” is incorrect.” Def.’s Mem. at 11.
Perhaps anticipating the incongruity of her position,
Plaintiff argues in the alternative that a “review of the two
disputed answer choices (“A” and “D”) illustrates that neither
selection properly answers the question.” Pl.’s Reply at 4.
Restating her earlier position, Plaintiff claims that question 9,
in its present form, can only be understood as asking: What type of
ruling is the importer entitled to receive? Not, as the agency
contends: What type of ruling is the importer entitled to request?
Since both answers (A) and (D) cite to the latter and not the
former, neither response is entirely correct. According to
Plaintiff, Customs’ flawed drafting of question 9 causes it to
suffer from a lack of critical decision-making information
necessary for an examinee to make a proper selection. See id. at
5 n.4. Therefore, the question is ambiguous on its face and the
Court No. 08-00115 Page 14
Court should grant Plaintiff credit for this question.8 See id.
Defendant alleges that Plaintiff’s strained interpretation of
question 9 runs contrary to one of the accepted principles of
statutory construction that “the meaning of a word cannot be
determined in isolation, but must be drawn from the context in
which it is used.” See Def.’s Sur-reply at 2 (quoting King v. St.
Vincent’s Hospital, 502 U.S. 215, 221 (1991)). Defendant insists
that question 9 is more accurately understood when examined against
the background of all the possible answer choices. See id. Hence,
an examinee can observe that all five of the answers provided
contemplate or relate to “requests” made by the hypothetical
importer. It is within this context, says Defendant, that question
9 can only be understood as seeking “to ascertain the type of
ruling an importer should request based upon the facts enunciated.”
Id. at 3. In sum, Defendant concludes, question 9 is not ambiguous
and clearly requires an answer based on the type of procedure on
which the importer must rely to request a ruling. See id. at 4.
At the core of the parties’ disagreement is whether question
8
Plaintiff makes the ancillary argument that question 9 is
misleading for a second reason, namely, that an importer is not
the party that seeks or receives Internal Advice. See Pl.’s Reply
at 5. The Court rejects this argument outright. In point of fact,
the regulations are unmistakable as to which party initiates the
Internal Advice request. See 19 C.F.R. § 177.11(a) (“Advice as to
the proper application of the Customs and related laws to a
current transaction will be sought by a Customs Service field
office whenever that office is requested to do so . . . by an
importer or other person having an interest in the transaction.”)
Court No. 08-00115 Page 15
9 requires an examinee to identify the type of ruling the importer
is entitled to “receive” or entitled to “request.” Examination of
the question stem isolated from the accompanying facts and answer
choices suggests an understanding consistent with Plaintiff’s
hypothesis. Without further qualification of the operative
language “entitled to” and “ruling,” the question can be understood
as asking the examinee to identify the appropriate course of action
for an importer to follow in order to receive a ruling. However,
as Customs correctly notes, the common meaning of a word or phrase
may be colored by the context in which it is used. Closer
inspection of question 9 as a whole makes clear that the question
seeks to ascertain the type of ruling an importer should request.
Indeed, four of the five possible answer choices, including
Plaintiff’s proposed answer (A), reference a “request” made by the
hypothetical importer. As the Court has already noted supra,
there is no procedure whereby an importer possesses an unqualified
right to be issued an administrative ruling by Customs. Thus, the
Court rejects the gravamen of Plaintiff’s argument that question 9
is more appropriately understood as asking what ruling the importer
is entitled to receive from the agency. See Pl.’s Reply at 4.
Plaintiff’s alternative assumptions are similarly flawed. For
example, she focuses on the presence of the term “ongoing” in the
second of the four facts provided in question 9. This, according
to Plaintiff, is indicative of the prospective nature of the
Court No. 08-00115 Page 16
shipments being described in the fact pattern. Therefore,
Plaintiff asserts, her answer properly recognizes that a ruling may
be obtained to provide a binding tariff classification on future
entries. Plaintiff’s reading of this single term, however,
disregards the existence of facts that focus primarily on current
transactions. Moreover, Plaintiff’s interpretation would render
this statement superfluous. Prospective transactions may never be
liquidated. The Court finds implausible the notion that this
statement was intended to negative a condition that would never
present itself. Rather, its intended purpose was to emphasize that
the current entries had yet to be liquidated. Upon examination of
the four additional facts as a whole, the inference to be drawn
should be readily apparent to a reader who is being tested on their
“knowledge of Customs and related laws, regulations and
procedures.” 19 C.F.R. 111.13(a). As the last of the four factual
elements states: “A ruling has NOT been requested or issued on
these import transactions.” Clearly, reference is being made to
the transactions described in the previous elements; i.e.,
unliquidated entries of green olives where a difference of opinion
exists as to the appropriate tariff classification. In other
words, those transactions currently before Customs. Each of the
factors discussed in the fact pattern are components of the
Internal Advice procedure which in turn leads to the one “best
answer,” that is to say answer choice (D).
Court No. 08-00115 Page 17
The rest of Plaintiff’s argument focuses on the proposition
that even if the agency’s answer is deemed correct, so too is
Plaintiff’s. The Court disagrees. It is incumbent upon the test-
taker to synthesize the fact pattern provided while referencing the
universe of information on which he or she is to base a decision.
With this in mind, Plaintiff’s proposed answer (A) possesses
limited applicability. Because a tariff classification ruling may
only be requested with respect to “prospective transactions” answer
(A) does nothing for the current transactions emphasized in
question 9. 19 C.F.R. § 177.1(a). Conversely, the Internal Advice
procedure contemplates “[a]dvice or guidance as to the
interpretation or proper application of the Customs and related
laws . . . at any time, whether the transaction is prospective,
current, or completed.” 19 C.F.R. § 177.11(a). Therefore, answer
(D) can properly be regarded as the “best answer” because it
considers both the current transactions which form the core of
question 9's hypothetical, as well as the “ongoing” shipments
identified by Plaintiff. In this way, answer (D) is consistent
with one of the express objectives of the license examination
procedure which is to test an examinee’s fitness “to render
valuable service to importers and exporters.” 19 C.F.R. §
111.13(a). Under the circumstances of question 9, the most
valuable service an importer might receive is one which allows the
importer to seek redress on both its current and ongoing
Court No. 08-00115 Page 18
transactions.
While Customs could perhaps have used more precise language in
its drafting of question 9, susceptibility of different meanings
does not in and of itself render a term ambiguous. The overall
meaning is unmistakable: the question seeks to identify the course
of action most appropriate for the hypothetical importer with
regard to the current transactions described therein. This is
answer (D).
CONCLUSION
Based on the foregoing, the Secretary’s determination denying
Plaintiff’s appeal of the scoring of her customs broker license
examination was not arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law, and therefore must be
sustained. Accordingly, Plaintiff’s request for relief under the
EAJA cannot lie. Plaintiff’s Motion for Judgment on the Agency
Record is denied.
/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: August 11, 2009
New York, New York