636 F.Supp. 921 (CIT. 1986), Court 85-08-01151, National Corn Growers Ass'n v. Baker

Docket Nº:Court 85-08-01151
Citation:636 F.Supp. 921
Party Name:National Corn Growers Ass'n v. Baker
Case Date:May 22, 1986
Court:Court of International Trade
 
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Page 921

636 F.Supp. 921 (CIT. 1986)

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 No. 85-08-01151.

United States Court of International Trade.

May 22, 1986

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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.

Opinion

AQUILINO, Judge:

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 court 1 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

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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).

I

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:

In any other civil action in the Court of International Trade in which judicial review is to proceed upon the basis of the record made before an agency, the agency shall, within forty days or within such other period of time as the court may specify, after the date of service of the summons and complaint upon the agency, transmit to the clerk of the court, as prescribed by its rules--

(A) a copy of the contested determination and the findings or report upon which such determination was based;

(B) a copy of any reported hearings or conferences conducted by the agency; and

(C) any documents, comments, or other papers filed by the public, interested parties, or governments with respect to the agency's action.

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.

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Of those papers, plaintiffs' motion to supplement sought admission into evidence of Nos. 12, 59, 60, 71, 79, 105, 107, 116, 117, 120, 122, 123, 124, 125 and 127, as well as three documents 4 not on the government list. The motion stated that the Roth affidavit

excludes a number of ... documents that were before the agency at the time of the agency decisions, some of which documents were filed with the agency by the public or interested parties and some of which were prepared by the agency and help explain the decision making process.... Since these documents come within the terms of Rule 72(a) and 28 U.S.C. § 2635, they should be included in the Administrative Record. 5

In addition to 28 U.S.C. § 2635 quoted above, CIT Rule 72(a) provides that

within 40 days after the service of the summons and complaint upon the agency, the agency shall file with the clerk of the court the items specified in paragraphs (1), (2) and (3) of this subdivision (a), if they exist, and the certified list specified in paragraph (4) of this subdivision (a), as part of the official record of the civil action.

(1) A copy of the contested determination and the findings or report upon which such determination was based.

(2) A copy of any reported hearings or conferences conducted by the agency.

(3) Any documents, comments, or other papers filed by the public, interested parties, or governments with respect to the agency's action. The agency shall identify and file under seal any document, comment, or other information obtained on a confidential basis, including a nonconfidential description of the nature of such confidential document, comment or information.

(4) A certified list of all items specified in paragraphs (1), (2) and (3) of this subdivision (a).

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 in May and June 1985 for Customs Service rulings on proposed importations of fuel ethanol by RAJ, Valley Green International Trading Corporation and Certified Oil Company 9. 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 (complaining ex post

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facto about the ruling revocations through ex parte procedures), No. 105 (Customs Service news bulletins after the fact) and Nos. 107 and 116 (attempts by Customs to explain its actions to Senator Robert Dole and then Secretary of Agriculture John R. Block...

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