Anderson v. U.S. Secretary of Agriculture

• Decision Date: 20 December 2006
• Docket Number: Slip Op. 06-186. Court No. 05-00329.
• Citation: 469 F.Supp.2d 1300
• Parties: Robert L. ANDERSON, Plaintiff, v. UNITED STATES SECRETARY OF AGRICULTURE, Defendant.
• Court: U.S. Court of International Trade

469 F.Supp.2d 1300

Robert L. ANDERSON, Plaintiff, v. UNITED STATES SECRETARY OF AGRICULTURE, Defendant.

Slip Op. 06-186. Court No. 05-00329.

United States Court of International Trade.

December 20, 2006.

MEMORANDUM OPINION AND ORDER

POGUE, Judge.

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 ___, 462 F.Supp.2d 1333 (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 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. 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...