National Corn Growers Ass'n v. Baker
Decision Date | 22 May 1986 |
Docket Number | Court No. 85-08-01151. |
Citation | 636 F. Supp. 921 |
Parties | NATIONAL CORN GROWERS ASSOCIATION, New Energy Company of Indiana, Archer Daniels Midland Company, Ohio Farm Bureau Federation and A.E. Staley Manufacturing Company, Plaintiffs, v. James A. BAKER III, Secretary, United States Department of the Treasury, John M. Walker, Jr., Assistant Secretary, United States Department of the Treasury, William Von Raab, Commissioner, United States Customs Service, and United States of America, Defendants, and Raj Chemicals, Inc., Certified Oil Company and Citicorp International Trading Company, Inc., Intervenor-Defendants. |
Court | U.S. Court of International Trade |
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Williams & Connolly (Aubrey M. Daniel, III, Stephen L. Urbanczyk, Manley W. Roberts, Robert W. Hamilton and William R. Murray, Jr.), Washington, D.C., for plaintiffs.
Richard K. Willard, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Commercial Litigation Branch (Kenneth N. Wolf), New York City, for defendants, Edward N. Maurer, U.S. Customs Service, of counsel.
McDermott, Will & Emery (Charles R. Work, R. Sarah Compton, Kurt J. Olson, Jacqueline E. Zins, Daniel C. Beckhard and Carolyn K. Weeder), Washington, D.C., for intervenor-defendant RAJ Chemicals, Inc.
Rogers & Wells (Robert V. McIntyre and Roger A. Clark), Washington, D.C., for intervenor-defendant Certified Oil Co.
Wilmer, Cutler & Pickering (A. Douglas Melamed, Robert C. Cassidy, Jr. and Deborah M. Levy), Washington, D.C., for intervenor-defendant Citicorp International Trading Co., Inc.
David L. Armstrong, Atty. Gen. (Frank F. Chuppe, Asst. Deputy Atty. Gen.), Frankfort, Ky., for The Commonwealth of Kentucky, as amicus curiae.
Mayer, Brown & Platt (Charles S. Levy), Washington, D.C., for American Farm Bureau Federation, as amicus curiae, and Hamel & Park (Jerome P. Weiss), Washington, D.C., for Illinois Agricultural Ass'n, as amicus curiae.
D'Amico, Luedtke, Demarest & Golden (William F. Demarest, Jr. and Lizbeth R. Levinson), Washington, D.C., for Citgo Petroleum Corp., as amicus curiae.
The background of this case has been set forth in Judge Carman's opinion, 9 CIT ___-___, Slip Op. 85-98 (Sept. 20, 1985), as well as in opinions of this court1 deciding various motions, and will be discussed hereinafter only as it relates to necessary findings of fact or conclusions of law.
The plaintiffs and the defendants specify the issues of law essentially as (1) whether the U.S. Customs Service had authority to permit importation of fuel ethanol from Brazil after August 2, 1985 without payment of the full duties prescribed in the Tariff Schedules of the United States and (2) whether Customs Service rulings permitting such importation were arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706(1)(A).
The parties also agree that the actions of the defendants complained of are to be measured by the contents of the administrative record. However, the parties do not concur as to what that record entails. Their disagreement stems from defendants' failure to comply with the mandate of 28 U.S.C. § 2635(d)(1), which is:
The summons and complaint were served on August 29, 1985. In the absence of the record (or any application to extend the time for the filing thereof), this court in Slip Op. 85-105 granted plaintiffs' motion for certain discovery of the defendant officials on the authority of Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971), Texas Steel Company v. Donovan, 93 F.R.D. 619 (N.D.Tex.1982), Exxon Corporation v. Department of Energy, 91 F.R.D. 26, 32-46 (N.D.Tex.1981), Quincy Oil, Inc. v. Federal Energy Administration, 468 F.Supp. 383 (D.Mass.1979), and Gulf Oil Corporation v. Schlesinger, 465 F.Supp. 913, 916 (E.D.Pa.1979). That discovery included production of documents, responses to interrogatories and presentment for depositions of Deputy Director John T. Roth and Director Harvey Brent Fox of the Classification and Value Division of the Customs Service.
The court scheduled trial of any outstanding issues of fact. Thereafter, counsel for the defendants filed with the Clerk documents claimed to comprise the administrative record. They also interposed on the eve of trial a motion for judgment on that record pursuant to CIT Rule 56.1 and moved for a stay until resolution of their dispositive motion.
The court denied a stay. The plaintiffs moved to supplement the record with documents, mostly obtained during discovery, and with Roth and Fox deposition testimony; intervenor-defendant RAJ Chemicals, Inc. hereinafter referred to as "RAJ" submitted an in limine motion to limit the scope of review to the administrative record.2
That record was submitted by counsel for the defendants under cover of an affidavit of Mr. Roth wherein he is characterized as having been "involved directly in the decisions"3 at issue in this case. The affidavit incorporates by reference and attaches a list of documents contained in defendants' response to plaintiffs' request to produce. The list has been marked to indicate which papers produced during discovery are not considered by the defendants to be part of their record and therefore were not filed.
For his part, Mr. Roth makes the point several times in his affidavit that he "expanded"6 paragraph (1) of this rule to supply certain documents as part of the record and that he also included other documents which do "not come within the scope of Rule 72(a)(1), (2) or (3)."7
In view of this attitude, and of the dictates of the above-quoted rules of law, it is difficult to discern why a number of documents discovered by the plaintiffs and proffered to supplement the record were not included in the first place. For example, document 71 is a request dated June 27, 1985 for a ruling by the Customs Service as to the duty on fuel ethanol proposed to be imported from Brazil by Citicorp International Trading Company, Inc.8, and document 79 is a reply thereto on July 15, 1985. Documents 122, 123, 124 and 125 are requests on May and June 1985 for Customs Service rulings on proposed importations of fuel ethanol by RAJ, Valley Green International Trading Corporation and Certified Oil Company9. Exhibit 19 is a letter dated July 18, 1985 from RAJ's counsel to Mr. Fox contending that the Service's rulings underlying this case "represent a clear and cogent interpretation of the relevant TSUS items and should not be revoked or modified". On the other hand, plaintiffs' position is much less tenable on other documents, e.g., No. 12 ( ), No. 105 ( ) and Nos. 107 and 116 ( ).
Notwithstanding the varying degrees of apparent relevance of the foregoing documents, they are not part of the administrative record according to the Roth affidavit, i.e., they were not before the decision-maker at the time of decision. In the face of such a certification, the court is not at liberty to hold otherwise simply on the grounds of production during discovery and relevance, which is...
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