Selivanoff v. United States Sec'y of Agriculture

Slip Op. 06 - 55

UNITED STATES COURT OF INTERNATIONAL TRADE
________________________________________
:
DOUG SELIVANOFF, :
:
Plaintiff, :
:
v. : Before: MUSGRAVE, Judge
: Court No. 05-00374
UNITED STATES SEC’Y OF AGRICULTURE, :
:
Defendant. :
________________________________________:

[Negative trade adjustment assistance determination by Foreign Agricultural Service remanded for
additional proceedings.]

Decided: April 18, 2006

Doug Selivanoff, plaintiff pro se.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice (David S. Silverbrand); Jeffrey Kahn, Office of the General Counsel, U.S.
Department of Agriculture, for the defendant.

OPINION AND ORDER

The plaintiff, Doug Selivanoff, fisher of Alaska salmon, contests the denial of his application

for trade adjustment assistance (TAA) cash benefits under 19 U.S.C. § 2401e by the United States

Department of Agriculture, Foreign Agricultural Service (FAS). His trade or business consumed

approximately 2100 hours per year during an eight-month fishing season for little more than $19,025

in the “pre-adjustment” year of 2001 as compared with $25,390 for 2003, both of which he duly

reported as “ordinary income (loss)” for his “S” corporation Bear Fisheries Ltd. Cf. Pub R. at 7, 11,

13. The government argues that FAS’s determination is correct and should be sustained. The
Court No. 05-00374 Page 2

specific issue on this appeal is whether Mr. Selivanoff’s “net fishing income” declined over the pre-

adjustment year of 2001. For the following reasons, this matter will be remanded to FAS for further

proceedings not inconsistent with this opinion.

Jurisdiction; Standard of Review

The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 2395. FAS’s findings of

fact will be considered conclusive if supported by substantial evidence on the record. 19 U.S.C. §

2395(b). Substantial evidence is “more than a mere scintilla” of evidence, it means “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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,

229 (1938)). It “is something less than the weight of the evidence, and the possibility of drawing two

inconsistent conclusions from the [same] evidence does not prevent an administrative agency’s

finding from being supported by substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,

620 (1966) (citations omitted). In the absence of substantial evidence or for good cause shown, the

matter will be remanded for further proceedings. See id. Further, “[t]o the extent necessary to

decision and when presented, the reviewing court shall decide all relevant questions of law, interpret

. . . statutory provisions, . . . determine the meaning or applicability of the terms of an agency

action[,]” and set aside agency action found to be inter alia “not in accordance with law.” 5 U.S.C.

§ 706. See 5 U.S.C.§ 702; Bowen v. Massachusetts, 487 U.S. 879, 911 (1988).

Background

In order to gain approval, an application for TAA cash benefits must demonstrate that the

adversely affected commodity producer’s “net farm income (as determined by the Secretary) for the
Court No. 05-00374 Page 3

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[.]” 19 U.S.C. § 2401e(a)(1)(C). The relevant

implementing regulation expanded upon that authority1 by including a definition of “net fishing

income”:

Net fishing income means net profit or loss, excluding payments under this
part, reported to the Internal Revenue Service [“IRS”] for the tax year that
most closely corresponds with the marketing year under consideration.

7 C.F.R. § 1580.102 (Nov. 1, 2004).

1
Section 141 of the Trade Act of 2002 amended title II of the Trade Act of 1974 to authorize
the Secretary of Agriculture to provide TAA cash benefits for an adversely affected “agricultural
commodity producer.” Pub. L. 107-210, 116 Stat. 933, 946-952 (2002). See 19 U.S.C. § 2401(2).
The amendment described “agricultural commodity producer” as a “‘person’ as prescribed by
regulations promulgated under section 1001(5) of the Food Security Act of 1985 (7 U.S.C. §
1308(e)).” See 7 C.F.R. § 1400.3. Such definition did not specify fishermen; however, Section 143
of the Trade Act of 2002 directed the Secretary of Commerce to study and report to Congress
“whether a trade adjustment assistance program is appropriate and feasible for fishermen . . .
[assuming] the term ‘fishermen’ means any person who is engaged in commercial fishing or is a
United States fish processor.” 116 Stat. at 953. FAS then published proposed 7 C.F.R. Part 1580
in order to develop regulation of TAA for agricultural commodities producers. In response, it
received numerous comments supporting extension of TAA to fishers of “wild Alaska salmon, who
face stiff competition from imported farm-raised salmon.” See Trade Adjustment Assistance for
Farmers, 68 Fed. Reg. 50048, 50049 (Aug. 20, 2003). Some commenters argued for extending TAA
to “all fishermen” but FAS concluded that extending TAA to “all fishermen” would be incompatible
with the aforementioned Section 143. Id. FAS decided instead to extend TAA coverage to
“aquaculture,” defined “to include products propagated and raised in controlled environments for
the purpose of human consumption, and it covers fishermen whose catch is adversely affected by
imported aquaculture products.” Id. On October 28, 2003, the FAS found that due to imports of
salmon, the landed prices for Alaska salmon declined by 34.6% over the preceding five-year average.
Trade Adjustment Assistance for Farmers, 68 Fed. Reg. 62766 (Nov. 6, 2003). FAS therefore
certified a TAA petition filed by Alaska fishermen for TAA benefits. Id. Adversely affected
agricultural commodity producers such as Mr. Selivanoff were thus eligible to file for cash benefits
within 90 days after issuance of the certificate of eligibility. See 19 U.S.C. § 2401e. Subsequently,
on September 23, 2004, FAS re-certified the petition after finding that landed prices for Alaskan
salmon remained below the 80 percent threshold. See Trade Adjustment Assistance for Farmers,
69 Fed. Reg. 60350 (Oct. 8, 2004). A year later, on October 6, 2005, FAS de-certified the petition
from eligibility. See Trade Adjustment Assistance for Farmers, 70 Fed. Reg. 60487 (Oct. 18, 2005).
Court No. 05-00374 Page 4

In his individual capacity, Mr. Selivanoff initiated a timely application for TAA benefits on

January 5, 2005. See Pub. R. at 1. In a letter accompanying the application, dated January 3, 2005,

Mr. Selivanoff explained2 his situation as follows:

In 2001 we had a bigger gross stock than in 2003. I did however have
more expenses in 2001 (primarily a repair on the bow of the boat[)]. On my
Bear Fisheries Ltd. tax return form 1120S Line 9, in 2001 I had $19,815
versus in 2003 [$]6,890, difference of $12,925.00.

On Line 32 schedule E in 2001 the total was 17,836[;] in 2002 the
total was 23,594, a difference of 5,758.00. If the repairs were the same in
2001 & 2003 I would of made in 2001 over $7,000 more dollars. It doesn’t
seem quit right that I wouldn’t qualify because of necessary maintenance.

Pub. R. at 3.

At the bottom of the application are four questions to be answered by the local Farm Service

Agency that ask whether the applicant has provided proof of adjusted gross income less than $2.5

million, “production” of the “commodity,” receipt of technical assistance, and “supporting

documentation verifying that the . . . net fishing income declined from the petition’s pre-adjustment

year?” See Pub. R. at 1. Regarding the last item, the case officer of the local Farm Service Agency

office checked “No” on January 13, 2005, albeit with respect to the column headed “Date

Documentation Received.” Id. The application relied on certain documentation in respect of Mr.

Selivanoff’s application for TAA benefits for the prior period, including completion of technical

assistance on March 19, 2004. See id. at 4-10.

Mr. Selivanoff’s completed application was forwarded to FAS on May 5, 2005. See Pub. R.

1, 62. It included two IRS 1120S forms (U.S. Income Tax Return for an S Corporation) for the 2001

2
The text of plaintiffs’ submissions are transcribed verbatim hereinafter with only minor
alterations for the sake of clarity.
Court No. 05-00374 Page 5

and 2003 years. Id. at 11, 13. Those documents show “ordinary income (loss) from trade or

business activities” in the amounts of $19,025 and $25,390, respectively. Id. FAS denied Mr.

Selivanoff’s application for TAA on April 1, 2005. The letter explained: “You have been denied a

TAA cash benefit because the documentation you provided the Farm Service Agency indicates that

your 2003 net fishing income was greater than your 2001 net fishing income.” Pub. R. 62. The letter

also informed that the disapproval was final and that Mr. Selivanoff could seek review in this Court.

Id.

Proceeding pro se, Mr. Selivanoff wrote to the Court by letter dated May 23, 2005 to seek

review of the adverse determination. The Clerk of the Court deemed the letter as fulfilling in

principle the requirements of a summons and complaint for the commencement of a civil action, and

copies were served upon FAS and the United States Department of Justice. The government filed

its answer on July 25, 2005. After the matter was assigned to these chambers, Mr. Selivanoff filed

a letter that was deemed a motion for judgment on December 7, 2005. The government responded

on January 13, 2006, and Mr. Selivanoff filed his reply on February 13, 2006.

Discussion

Mr. Selivanoff’s TAA application describes “necessary maintenance” to his boat for the 2001

year as distorting his “normal” income. Cf. Pub. R. at 3 (“[i]f the repairs were the same in 2001 &

2003 I would of made over $7,000 more dollars”). In his letter to the Court of November 30, 2005,

he elaborated as follows:

If we start with my gross (and I mean gross) stock the simplest figure
in 2001 our stock was $130,954.00 we caught 700,000 pounds of Salmon.
Court No. 05-00374 Page 6

In 2003 our stock was $128,795.00 and we caught 1.1 million pounds
indicating a reduction of fish price by over 30%. Now we have two figures
that indicate a drop from 2001 to 2003, our gross stock and fish price (we lost
pricing power).

At this point the denial of these benefits have penalized me for
working harder and trying to make the most of a bad situation. My so-called
increase in income in 2003 has come from several things.

1) In 2001 a storm got me and I incurred $19,815 in damages, I guess I
was lucky to be alive, had this happened in 2003 you would of never
heard from me because I would qualify.

2) In 2003 I reduced my crew by one, I increase my workload by 25%.
Grub and Insurance costs dropped in 2003 because of the reduction
of crew. Increasing my profits but the workload increased.

3) By 2003 my boat had pretty much been depreciated out. In 2001 my
depreciation was $4,135.00 and in 2003 it was $812.00

*****

I appeal to you not to look at some line item but to look at the bigger
picture here. In 2003 we worked harder, caught more fish but made less
money than in 2001, it is that simple.

Doc. R. 1.

Would that it were. Apparently referencing the impact upon financial statements of

extraordinary expenses and noncash matters, it appears Mr. Selivanoff’s argument is that his net

profit for 2001 as shown on line 21 of IRS form 1120S does not provide an accurate baseline figure

against which to evaluate his net profit for 2003, which FAS has implicitly determined constitutes

his “net fishing income,” also defined as “net profit or loss.” See 19 U.S.C. § 2401e(a)(1)(C); 7

C.F.R. § 1580.102. The government urges judicial deference to FAS’s interpretation of net fishing

income as reasonable.
Court No. 05-00374 Page 7

Net fishing income is what distinguishes a producer harmed by import competition and

entitled to cash benefits. Decisions to date have emphasized that Congress clearly delegated to the

Secretary of Agriculture the authority to determine “net farm income,” from which the Court’s

decisions have uniformly concluded that FAS’s interpretation of “net fishing income” as including

all commercial fishing income sources and excluding non-fishing sources of income has been

reasonable. E.g. Steen v. Sec’y of Agriculture, 395 F. Supp. 2d 1345 (CIT Oct. 3, 2005); Cabana

v. U.S. Sec’y of Agriculture, Slip Op. 05-93 (CIT Aug. 1, 2005), sust’d after remand Slip Op. 06-27

(CIT Feb. 28, 2006) (negative determination sustained). It bears repeating, however, that Congress

mandated that the Secretary determine net farm income, not merely determine the meaning of net

farm income; rote reliance upon a single line item “reported to the Internal Revenue Service” without

further analysis or, as necessary, further investigation will not suffice. Cf. Rood v. U.S. Sec’y of

Agriculture, Slip Op. 05-112 (CIT Aug. 29, 2005), sust’d after remand Slip Op. 06-31 (CIT Mar.

1, 2006) (benefits awarded); Do v. U.S. Sec’y of Agriculture, Slip Op. 06-29 (CIT Feb. 28, 2006)

(capital gain not reported on Schedule C was therefore not included in “net fishing income”

determination); Trinh v. U.S. Sec’y of Agriculture, 395 F. Supp. 2d 1259, 1271-1272 (CIT Aug. 29,

2005) (remanded due to inadequate investigation of claim involving “bigger repairs on the boat in

2001” as compared to 2002 in light of amended tax return filing). Steen and Cabana upheld FAS’s

interpretation to consider overall net “fishing income” as the relevant determinant, while Rood, Do

and Trinh demonstrate that it is appropriate to exclude “non-fishing income” items therefrom.

Implicit in all decisions is recognition of the need to make apples-to-apples comparisons between

the claim year and pre-adjustment year figures.
Court No. 05-00374 Page 8

In the TAA context, “net” means “[f]ree from, or not subject to, any deductions; remaining

after all necessary deductions have been made.” Oxford English Dictionary, vol. X, p. 340 (2d ed.

1989) (italics added). The question remains: net of what? If Mr. Selivanoff is arguing that FAS

erred because it failed to exclude, or at least consider, extraordinary expenses items in its

determination of his net fishing income, the argument has a certain appeal, because a single profit

or loss figure does not provide a complete picture of all of the factors affecting the change in a

person’s financial status, which is the object of the comparison in subparagraph 2401e(a)(1)(C). A

single profit or loss figure is, by definition, intended to be net of all relevant influences. Those may

or may not include noncash and extraordinary expenses, such as capital gains or losses, depending

upon the perspective sought. Cf. West Ohio Gas Co. v. Public Utilities Comm’n of Ohio, 294 U.S.

63, 75 (1935) (extraordinary expenses are a charge upon capital rather than a charge upon income);

Taylor v. Mayo, 110 U.S. 330, 338 (1884) (improvements are extraordinary expenses). Indeed, the

Farm Financial Standards Council (FFSC) urges that in order to provide an accurate picture of net

farm income, the concept should include all gains and losses from disposal of farm capital assets

unless those gains or losses qualify as an extraordinary item.3

3
Financial Guidelines for Agricultural Producers, at 22 (FFSC, Dec. 1997). According to
the FFSC, in order to be an extraordinary item, the transaction should be:

a. Unusual in nature. The underlying event possesses a high degree of
abnormality, and is of a type clearly not related to, or only incidentally related
to, the ordinary and typical activities of the enterprise.

b. Infrequent in occurrence. The underlying event is of a type that would not
reasonably be expected to recur in the foreseeable future, taking into account
the environment in which the enterprise operates.

Id.
Court No. 05-00374 Page 9

Based upon FAS’s position in Do, the FAS would regard extraordinary gains as “non-fishing

income” events. Logically, such ought, therefore, to apply to extraordinary losses as well. Indeed,

the regulation itself does not include all income but excludes “payments under this part[.]” See 7

C.F.R. § 1580.102. On the other hand, the capital gain in Do was not reported as income,

extraordinary or otherwise, on the relevant Schedule C to IRS form 1040. In that case, the argument

was for inclusion, not exclusion, of a reported (albeit in another section of IRS form 1040) event

with respect to the relevant Schedule C that FAS examined for net fishing income. Here, the Court

confronts a plea for exclusion of items that were included on a Schedule C, which Mr. Selivanoff

took as deductions in achieving the net profit for 2001 that he reported to the IRS. But, the relevance

of such distinction is not discernable. If it is true, as Mr. Selivanoff apparently argues, that his net

profit for 2001 is not representative of a “normal” year’s profit, the obvious question would be, what

is a “normal” year? One answer might be provided by the law of averages, which would point in

favor of using the average or weighted-average of several financial periods. Cf., e.g., 19 U.S.C. §

2401e (TAA petition for eligibility is based upon a five-year average of price data concerning the

adversely affected commodity). Such a solution, however, would be a legislative matter for

Congress and not this Court. On the other hand, in comparing the net profit of the claim year to the

net profit of the pre-adjustment year, FAS is merely complying with what is statutorily required of

it. See id. § 2401e(a)(1)(C). It is, nonetheless and as previously mentioned, a matter of some import

that FAS determine whether items that have been reported to the IRS are appropriate to the

determination of net fishing income. A particular IRS form 1040’s Schedule C may encompass two

lines of business, one fishing and the other non-fishing, just as it may embody extraordinary income
Court No. 05-00374 Page 10

and deduction items, which may or may not be pertinent to a determination of net fishing income.

But, as Rood and like cases re-affirm, it is only the net fishing income that is relevant. See, e.g.,

Rood, supra; Cabana, supra. The government, perhaps therefore, emphasizes that the circumstances

about which Mr. Selivanoff complains had the effect of reducing his tax liability in 2001 in

comparison with 2003. Cf. Pub. R. 11 with id. at 13. That is true, but disclosure for the purpose of

taxation is different than discovery by FAS for the purpose of determining benefits. There may be

overlap of income and deductions for both purposes, but income and deductions relevant to the latter

are not necessarily as all-encompassing as the former.

FAS’s regulation, 7 C.F.R. § 1580.102, states that net fishing income shall be the net profit

or loss reported to the IRS.4 If this is read to imply subdelgation of the determination of net profit

or loss to the IRS, a subdelegation of authority to another agency is not necessarily objectionable as

a general matter, but without express congressional authorization therefor, its parameters must be

discerned through the statute’s purpose. Assiniboine & Sioux Tribes of Fort Peck Indian Reserv. v.

Board of Oil and Gas Conserv. of State of Montana, 792 F.2d 782, 795 (9th Cir. 1986); Rodriguez

v. Compass Shipping Co., 617 F.2d 955, 959 (2d Cir. 1980), aff'd, 451 U.S. 596 (1981). See, e.g.,

5 U.S.C. § 1104 (delineating subdelegation authority of Director of Office of Personnel

Management). Any permissible subdelegation may not exceed the agency’s own delegated authority

from Congress. Vierra v. Rubin, 915 F.2d 1372, 1378 (9th Cir. 1990). In this instance, the purpose

of the statute is to assist agricultural commodity workers in the face of intense import competition

4
As noted in Trinh (supra) however, the rule also permits “(i) Supporting documentation
from a certified public accountant or attorney, or (ii) Relevant documentation and other supporting
financial data, such as financial statements, balance sheets, and reports prepared for or provided to
the Internal Revenue Service or another U.S. Government agency. . . .” 7 C.F.R. § 1580.301(e)(6).
Court No. 05-00374 Page 11

affecting their livelihood, and Congress has clearly directed the Secretary of Agriculture to determine

net farm (fishing) income. If the regulation is read as implying that FAS merely accepts and does

not subject a particular net profit (loss) line item—as reported to the IRS, in the convention its forms

require—to further analysis in light of an applicant’s claims with respect thereto, then FAS has, in

effect, subdelegated the determination of net farm or fishing income to the IRS, in derogation of its

statutory mandate. See 19 U.S.C. § 2401e(a)(1)(C). See, e.g., U.S. Telecom Ass'n v. FCC, 359 F.3d

554, 564-568, 360 U.S.App.D.C. 202, 212-216 (D.C. Cir. 2004), cert denied, 543 U.S. 925 (2004)

(FCC can not delegate unbundling decisions to state utility commissions); Save Our Wetlands, Inc.

v. Sands, 711 F.2d 634, 641-43 (5th Cir. 1983) (agency record requires proof of review and

consideration prior to agency’s reliance upon work product of others); Sierra Club v. Lynn, 502 F.2d

43, 59 (5th Cir. 1974), cert. denied, 421 U.S. 994 (1975) (third parties may participate in preparation

of environmental impact reports as long as agency does not abdicate responsibilities and rubberstamp

their work product). Cf. Apotex, Inc. v. Thompson, 347 F.3d 1335, 1349 (Fed. Cir. 2003)

(acknowledging principle that subdelegation must derive from lawful authority). Contrary to the

government’s implicit premise that it is sufficient for FAS merely to adopt a summary line item

reported to the IRS, the regulation does not preclude argument on and interpretation of all relevant

data pertinent thereto but reflects congressional intent that FAS determine net fishing income

through consideration of such data.

FAS’s negative determination letter to Mr. Selivanoff states simply that his application for

TAA benefits was denied “because the documentation you provided the Farm Service Agency

indicates that your 2003 net fishing income was greater than your 2001 net fishing income.” Pub.
Court No. 05-00374 Page 12

R. at 62. The letter does not detail why that is so. Further, the Court cannot discern from the record

whether FAS actually undertook analysis to determine net fishing income, or whether it simply relied

on a comparison of the bottom-line items that were reported to the IRS, notwithstanding that Mr.

Selivanoff clearly raised the claim that he had significantly higher expenses in 2001 due to repairs

to his boat. See Pub. R. at 3. On the one hand, the boilerplate ultimately issued as FAS’s negative

determination mirrors the paucity of Mr. Selivanoff’s own explanation, at the outset of his

application, regarding such damages (which he here asserts were due to a storm that left him “lucky

to be alive”), however it was at least clear, at the time, that he was contesting the impact of such

expense reported on his 2001 net income or profit. With neither an accounting nor legal background,

Mr. Selivanoff’s application at least asserted sufficient facts to raise a colorable issue that bore on

the determination. Yet, other than the checked and dated boxes completed by the local Farm Service

Agency office on Mr. Selivanoff’s application and its final negative determination addressed to him,

see Pub. R. at 1 & 62, there are no indicia of further contact with Mr. Selivanoff and not a single note

or comment to indicate FAS’s consideration of Mr. Selivanoff’s application. In short, the Court

cannot state with confidence that this record reflects a determination made with the “utmost regard”

for Mr. Selivanoff’s interests.5 See Trinh, supra, 395 F. Supp.2d at 1267 and cases cited. Consistent

with this opinion, the matter therefore requires fuller investigation, consideration and explanation.

5
Post hoc rationalization will not do. E.g. ILWU Local 142 v. Donovan, 10 CIT 161, 164
(1986). “[A] reviewing court, in dealing with a determination or judgment which an administrative
agency alone is authorized to make, must judge the propriety of such action solely by the grounds
invoked by the agency.” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). Although Mr. Selivanoff
did not initially raise the depreciation and restructuring items (‘grub and insurance’ and crew costs)
before FAS, this is not fatal to these claims because it appears the investigation was inadequate in
any event. The government argues that such costs have been properly accounted for; however, FAS
should consider these items in the first instance, as it would not be prudent at this juncture for the
Court to comment on their impact on the determination.
Court No. 05-00374 Page 13

Conclusion

For the foregoing reasons, it is appropriate to remand this matter to the Foreign Agricultural

Service for further proceedings not inconsistent with this opinion. On remand, FAS shall determine

(a) whether Mr. Selivanoff’s points, each individually, are in the nature of ordinary or extraordinary

deductions, and (b) if the latter, whether each item is to be included or excluded from the

determination of net fishing income, and file its remand results with the Court within 45 days from

the date of this opinion, whereupon the parties may have 15 days to make any comments with respect

thereto, and no rebuttal without leave. If FAS is satisfied as to the veracity of Mr. Selivanoff’s

assertions and considers that additional fact finding is unnecessary in order for FAS to make its full

and considered determination, with the utmost regard for Mr. Selivanoff’s interests, then it need not

reopen the administrative record, but it shall also consider any additional information that Mr.

Selivanoff may choose to submit, unsolicited, to FAS in order to support his claim, should he so

choose. In this regard, Mr. Selivanoff is advised to contact counsel for the defendant for further

instructions on how to do so.

SO ORDERED.

/s/ R. Kenton Musgrave
R. KENTON MUSGRAVE, JUDGE

Dated: April 18, 2006
New York, New York