Slip Op. 06-186
United States Court of International Trade
ROBERT L. ANDERSON,
Plaintiff, Before: Pogue, Judge
Court No. 05-00329
v.
UNITED STATES SECRETARY OF
AGRICULTURE,
Defendant.
MEMORANDUM OPINION AND ORDER
On November 1, 2006, the court remanded the captioned matter
for reconsideration of the defendant agency’s refusal to consider
Plaintiff’s claim that his net income declined on an accrual basis.
Anderson v. United States Sec’y of Agric., 30 CIT __, Slip Op. 06-
161 (CIT 2006).1
Citing the decision of the Court of Appeals for the Federal
Circuit (“CAFC”) in Steen v. United States, 468 F. 3d 1357 (Fed.
Cir. 2006), the agency refused to comply with the court’s remand
order. In Steen, the CAFC affirmed the application of the same
agency regulation at issue here, 7 C.F.R. § 1580.102(2004), which
relies on Internal Revenue Service (“IRS”) Schedule C in defining
“net fishing income”; nonetheless, the CAFC also took pains to
specify that its approval of the agency’s application of its
1
Familiarity with the court’s prior opinion is presumed.
regulation applied only to Mr. Steen’s claim that “his net fishing
income should be calculated with respect to the imported commodity
only and should not be calculated by taking into account his income
from other commercial fishing activity.” Id. at 1360. The CAFC
went on to state: “Mr. Steen does not contend that his tax returns
distort the net amount of his income derived from all fishing
sources in the two relevant years. . . .” Id. at 1364.2
Accordingly, the agency’s reliance on Steen in the remand
determination at issue here is inappropriate. The CAFC clearly did
not intend for its opinion to be read to render the pro forma use
of the net income line from the IRS’s Schedule C in accordance with
law in all circumstances. On the contrary, the CAFC specifically
instructed that the Steen decision did not apply to claims such as
Mr. Anderson’s that his tax returns distort the net amount of his
income derived from all fishing sources in the two relevant years
when considered on an accrual basis.
In addition, if the agency believed that Steen represented
intervening contrary authority and therefore rendered the court’s
remand order nugatory, the proper and prudent course would have
been to move for reconsideration or rehearing in accordance with
2
Additionally, the CAFC noted that “the regulations make
it reasonably clear that the determination of net farm income or
net fishing income is not to be made solely on the basis of tax
return information if other information is relevant to
determining the producer’s net income from all farming or fishing
sources.” Steen, 468 F. 3d at 1364.
2
USCIT R. 59. See Union Camp Corp. v. United States, 23 CIT 264,
270, 53 F. Supp. 2d 1310, 1317 (1999)(“a motion for reconsideration
should be granted, and the underlying judgment or order modified,
when a movant demonstrated that the judgment is based on manifest
errors of law or fact.”). Absent appeal, an agency is not free to
disregard a court order, but rather must obey the order pending
appeal. Georgetown Steel Co. v. United States, 27 CIT 550, 555-56,
259 F. Supp. 2d 1344, 1348 (2003); cf. Hyundai Elecs. Indus. v.
United States, 30 CIT __, __, 414 F. Supp. 2d 1289, 1291 (2006)(in
the context of a remand to the agency, after compliance with the
remand order, the parties argued the intervening authority to the
court.).
The agency’s refusal to comply with the court’s remand order
reflects disregard of the court’s authority. Moreover, where a
plain reading of Steen would have demonstrated its inapplicability,
the agency’s action is contrary to the requirements of USCIT
R.11(b)(“claims, defenses, and other legal contentions...are [to
be] warranted by existing law . . . .”).
For the foregoing reasons, the court again remands this matter
for reconsideration consistent with this order. The agency
shall have until January 19, 2007, to provide a remand
determination. Plaintiff shall submit comments on the remand
determination no later than February 2, 2007, and the government
shall submit rebuttal comments no later than February 12, 2007.
3
In addition, in accordance with USCIT R. 11(c), the Defendant
is ordered to show cause, by January 19, 2007, why it has not
violated USCIT R. 11(b) with respect to the initial remand
determination discussed herein.
SO ORDERED.
Dated: December 20, 2006
New York, New York
/s/ Donald C. Pogue
Donald C. Pogue
Judge
4