                          Slip Op. 05-93

           UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
________________________________________
                                        :
LARRY CABANA,                           :
                                        :
     Plaintiff,                         :
                                        :              Court No.
     v.                                 :              04-00634
                                        :
UNITED STATES SECRETARY                 :
OF AGRICULTURE,                         :
                                        :
     Defendant.                         :
________________________________________:

     Defendant, United States Secretary of Agriculture (“USDA”),
moves pursuant to USCIT R. 12(b)(5) to dismiss for failure to state
a claim upon which relief may be granted. The USDA contends that
plaintiff, Larry Cabana, has failed to allege sufficient facts in
the complaint to find eligibility for trade adjustment assistance
(“TAA”).    Specifically, the USDA asserts that Cabana is not
eligible for TAA benefits because his net fishing income in 2002
was not less than his 2001 net fishing income. Cabana responds
that the statute references “net farm income” and that he properly
alleges in the complaint that his net fishing income in 2002 was
less than his 2001 net fishing income although his business income
increased marginally during the relevant time period.

     Held: Defendant’s USCIT R. 12(b)(5) motion is denied.

     Grunfeld, Desiderio, Lebowitz,    Silverman   &    Klestadt   LLP,
(William F. Marshall) for plaintiff.

     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); of counsel: Jeffrey Kahn, Office of
the General Counsel, United States Department of Agriculture, for
defendant.

                                                        August 1, 2005
Court No. 04-00634                                                   Page 2


                            OPINION & ORDER

     TSOUCALAS, Senior Judge:       Defendant, United States Secretary of

Agriculture (“USDA”), moves pursuant to USCIT R. 12(b)(5) to

dismiss for failure to state a claim upon which relief may be

granted.      The USDA contends that plaintiff, Larry Cabana, has

failed   to   allege   sufficient    facts   in   the   complaint   to   find

eligibility for trade adjustment assistance (“TAA”). Specifically,

the USDA asserts that Cabana is not eligible for TAA benefits

because his net fishing income in 2002 was not less than his 2001

net fishing income.      Cabana responds that the statute references

“net farm income” and that he properly alleges in the complaint

that his net fishing income in 2002 was less than his 2001 net

fishing income although his business income increased marginally

during the relevant time period.



                              JURISDICTION

     The Court has jurisdiction over this matter pursuant to 19

U.S.C. § 2395 (2000) amended by 19 U.S.C. § 2395 (Supp. II 2002).1

     1
          Section 284(a) of the Trade Act of 1974 was amended,
effective August 6, 2002, and provided this Court with jurisdiction
over trade adjustment assistance matters brought by agricultural
commodity producers. See Trade Act of 2002, Pub. L. No. 107-210,
§ 142, 116 Stat. 953 (2002). In relevant part the statute states
that “an agricultural commodity producer (as defined in section
2401(2) of this title) aggrieved by a determination of the
Secretary of Agriculture under section 2401b . . . may, within
sixty days after notice of such determination, commence a civil
action in the United States Court of International Trade for review
Court No. 04-00634                                                        Page 3


                             STANDARD OF REVIEW

     A court should not dismiss a complaint for failure to state a

claim upon which relief may be granted “unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.”            Conley v. Gibson,

355 U.S. 41, 45-46 (1957); see also Halperin Shipping Co., Inc. v.

United States, 13 CIT 465, 466 (1989).          Moreover, the Court must

accept all well-pleaded facts as true and view them in the light

most favorable to the non-moving party.              See United States v.

Islip, 22 CIT 852, 854, 18 F. Supp. 2d 1047, 1051 (1998) (citing

Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed. Cir.

1991)). A pleading that sets forth a claim for relief must contain

“a   short    and    plain   statement”   of   the     grounds     upon   which

jurisdiction depends and “of the claim showing that the pleader is

entitled to relief . . . .”         USCIT R. 8(a).       “To determine the

sufficiency of a claim, consideration is limited to the facts

stated on the face of the complaint, documents appended to the

complaint,     and   documents   incorporated     in    the      complaint   by

reference.”      Fabrene, Inc. v. United States, 17 CIT 911, 913

(1993).      Accordingly, the Court must decide whether plaintiff is



of such determination.” 19 U.S.C. § 2395(a) . Accordingly, the
Court “shall have jurisdiction to affirm the action of the
Secretary of Labor, the Secretary of Commerce, or the Secretary of
Agriculture, as the case may be, or to set such action aside, in
whole or in part.” 19 U.S.C. § 2395(c).
Court No. 04-00634                                               Page 4


entitled to offer evidence in support of its claim, and not whether

plaintiff will prevail in its claim.     See Halperin, 13 CIT at 466.



                              DISCUSSION

     The USDA contends that Cabana’s complaint fails to allege

facts sufficient to find eligibility for TAA benefits.       See Def.’s

Mem. Supp. Mot. Dismiss Failure State Claim Upon Which Relief May

Be Granted (“USDA’s Mem.”) at 6-8.         The USDA notes that to be

certified by the USDA, the statute requires, inter alia, that the

producer’s “net farm income (as determined by [the USDA]) 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 [the statute].”       Id. at 6 (emphasis omitted)

(quoting 19 U.S.C. § 2401e(a)(1)(C) (Supp. II 2002)).       The USDA’s

regulations require the producer to establish “that net farm or

fishing income was less than that during the producer’s pre-

adjustment year.”    Id. (quoting 7 C.F.R. § 1580.301(e)(4) (2004)).

The USDA argues that Cabana has failed to certify that his net

fishing income for 2002 was less than his net fishing income for

2001.   See id. at 7.     Cabana concedes in his complaint that his

original   case   was   disqualified   because   his   application   for

certification showed that his income in 2002 was more than that of

2001.   See id. at 8.   The USDA argues that Cabana’s assertion, that

his income from salmon was higher in 2001 than in 2002, is not
Court No. 04-00634                                                   Page 5


relevant because “[n]othing in the relevant statutes or regulations

provides for a determination of an applicant’s ‘farm or fishing

income’ based upon earnings according to individual fish species.”

Id. (emphasis retained).        The USDA further asserts that Cabana’s

“2002 net fishing income was $37,331, which is higher than his 2001

net fishing income of $35,759.”          Id.    The USDA maintains that

Cabana does not qualify for TAA benefits and, therefore, fails to

state a claim upon which relief may be granted.          See id.


      Cabana responds that the administrative record established his

eligibility for TAA benefits.      See Pl.’s Resp. Def.’s Mot. Dismiss

Failure State Claim Upon Which Relief May Be Granted (“Cabana’s

Resp.”) at 3-5.    Cabana asserts that he submitted his application

for benefits “along with business records clearly identifying the

total salmon catch for both 2001 and 2002 as well as tax returns

submitted to the Internal Revenue Service.”             Id. at 4.    Cabana

argues that the statute does not define the term “net farm income.”

See id.     Cabana contends, however, that the USDA’s definition of

“net farm income” is contrary to the statutory language.            See id.

at   4-5.    Cabana   asserts   that   “if   Congress   intended    to   base

eligibility for trade adjustment allowances on income, [then] it

would not have qualified [net income] with the term farm . . . .”

Id. at 5.    Cabana maintains that the statutory language indicates

Congress’ intent to grant TAA benefits to agricultural producers
Court No. 04-00634                                                    Page 6


whose income from farming decreased because of competing imported

agricultural commodities.       See id.     Cabana asserts that his income

from    fishing   in   2001    and   2002    was    $31,663   and   $31,195,

respectively.     See id.     Cabana argues that while his net business

income increased marginally, his net income from fishing decreased.

See id.    Accordingly, Cabana maintains that the USDA’s motion to

dismiss should be denied.        See id.


       After considering the motion before the Court and all relevant

papers filed thereto, the Court finds that Cabana has alleged a

claim upon which relief may be granted.            Under the Administrative

Procedures Act, “[a] person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency action within

the meaning of a relevant statute, is entitled to judicial review

thereof.” 5 U.S.C. § 702 (2000). Having accepted all well-pleaded

facts as true and viewed in the light most favorable to Cabana, the

Court finds that Cabana has sufficiently alleged a cause of action

entitling him to present evidence to support his claim that the

definition of “net farm income” in the USDA’s regulations is

contrary to the statutory language of 19 U.S.C. § 2401e.                See

Halperin, 13 CIT at 466.       It does not appear “beyond a doubt” that

Cabana is unable to present facts in support of his claim.           For the

foregoing reasons, it is hereby
Court No. 04-00634                                           Page 7


     ORDERED that defendant’s motion to dismiss for failure to

state a claim upon which relief may be granted is Denied; and its

is further


     ORDERED that the parties proceed on the merits of the case.




                                    /s/ Nicholas Tsoucalas
                                        NICHOLAS TSOUCALAS
                                            SENIOR JUDGE

Dated:    August 1, 2005
          New York, New York
