Giorgio Foods Inc. v. United States

• Decision Date: 08 March 2011
• Docket Number: Slip Op. 11–27.Court No. 03–00286.
• Citation: 755 F.Supp.2d 1342
• Parties: GIORGIO FOODS, INC., Plaintiff,v.UNITED STATES, Defendant,andL.K. Bowman Company, Monterey Mushrooms, Inc., and Mushroom Canning Company, Defendant–Intervenors.
• Court: U.S. Court of International Trade

755 F.Supp.2d 1342

GIORGIO FOODS, INC., Plaintiff,

v.UNITED STATES, Defendant,andL.K. Bowman Company, Monterey Mushrooms, Inc., and Mushroom Canning Company, Defendant–Intervenors.

Slip Op. 11–27.Court No. 03–00286.

United States Court of International Trade.

March 8, 2011.

Arnold & Porter, LLP, Washington, DC (Michael T. Shor and Sarah Brackney Arni) for Plaintiff Giorgio Foods, Inc.Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (David S. Silverbrand and Melissa M. Devine) and James M. Lyons, General Counsel, Neal J. Reynolds, Assistant General Counsel, U.S. International Trade Commission (Patrick V. Gallagher, Jr.) for Defendant United States.Akin, Gump, Strauss, Hauer & Feld, LLP, Washington, DC (Valerie A. Slater) for Defendant–Intervenors L.K. Bowman Company and Mushroom Canning Company.Kelley Drye & Warren LLP, Washington, DC (Michael J. Coursey and R. Alan Luberda) for Defendant–Intervenor Monterey Mushrooms, Inc.

OPINION

WALLACH, Judge.

IINTRODUCTION

In its Motion to Complete the ITC Record, Plaintiff Giorgio Foods, Inc. (“Giorgio” or “Plaintiff”) seeks to compel Defendant United States to file with the court and to provide to the parties as part of the administrative record various documents from the United States International Trade Commission's (“ITC” or “Commission”) 1998–99 preliminary and final antidumping injury investigations regarding Certain Preserved Mushrooms from Chile, China, India, and Indonesia, Invs. 731–TA–776–779. Plaintiff's Motion to Complete the ITC Record (“Plaintiff's Motion”).¹ The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(i).

For the reasons stated below, Plaintiff's Motion is GRANTED.

IIBACKGROUND

In order to qualify for distributions under the Continued Dumping and Subsidy Offset Act (“Byrd Amendment” or “CDSOA”),² an entity must qualify as an “affected domestic producer.” 19 U.S.C. § 1675c(a); see also SKF USA, Inc. v. U.S. Customs and Border Prot., 556 F.3d 1337 (Fed.Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 3273, 176 L.Ed.2d 1182 (2010); Cathedral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d 1352 (Fed.Cir.2005).³ An “affected domestic producer” is defined as either a “petitioner” or an “interested party in support of the petition with respect to which an antidumping duty order ... has been entered,” the later indicating its support “by letter or through questionnaire response.” 19 U.S.C. § 1675c(b)(1)(A), (d)(1).

Prior to the enactment of the CDSOA, from 1998–99, the Commission conducted antidumping duty injury investigations concerning certain preserved mushrooms from Chile, China, India, and Indonesia. See Plaintiff's First Amended Complaint (“Plaintiff's Complaint”) at 6.⁴ In response to the ITC's questionnaires in these investigations, Plaintiff “indicated that it (1) took no position with respect to the petition filed against preserved mushrooms from Chile, China, and Indonesia, and (2) opposed the petition with respect to India.” Id. at 8. However, Giorgio alleges it “took numerous actions to support the petition [[confidential information]].” Id. at 6.

The ITC “determined that Giorgio was not eligible to be placed on its petition support list for these orders,” finding that the documents reviewed “showed that Giorgio was not a petitioner in the investigations and did not express support for the petition in its questionnaire response.” Opposition of Defendant United States International Trade Commission to Plaintiff's Motion to Complete the Agency Record (“ITC's Opposition”) at 6. In May 2003, Giorgio commenced this action to challenge its exclusion from the list of affected domestic producers compiled by the ITC and from the resulting distributions by U.S. Customs and Border Protection of funds under the CDSOA. Plaintiff's Complaint at 5.

Giorgio is currently seeking to include in the administrative record documents from the preliminary and final antidumping injury investigations regarding Certain Preserved Mushrooms from Chile, China, India, and Indonesia, Invs. 731–TA–776–779. Plaintiff's Motion at 1. Giorgio alleges the additional documents requested are necessary to prove that Giorgio “took no actions to oppose any of the four petitions” and “took numerous significant actions to support the petitioners” and that Giorgio was therefore “unconstitutionally denied CDSOA benefits solely as a result of viewpoint-based speech, i.e. not checking off a questionnaire box indicating that it supported the petitions.” Id. at 10. ⁵

IIISTANDARD OF REVIEW

The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(i). In residual jurisdiction cases, this court reviews the matter as provided in the Administrative Procedure Act, which directs the court to “review the whole record or those parts of it cited by a party.” 28 U.S.C. § 2640(e); 5 U.S.C. § 706 (emphasis added). The United States Supreme Court has defined “whole record” within 5 U.S.C. § 706 as “the full administrative record that was before the Secretary at the time he made his decision.” Defenders of Wildlife v. Dalton, 24 CIT 1116, 1118 (2000) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)).⁶

In an administrative review case, it is rare that a federal court will consider information outside of the record submitted. See Advanced Tech. & Materials Co. v. United States, Slip Op.2010–59, 2010 WL 1976881, *4, 2010 Ct. Intl. Trade LEXIS 60 at *12 (May 18, 2010) (“It is black letter law that review in federal court must be confined to the agency's record; consideration of information outside of the record is deemed appropriate only in the rare case.”) (quotations omitted); see also Murakami v. United States, 46 Fed. Cl. 731, 735 (2000), aff'd, 398 F.3d 1342 (Fed.Cir.2005) (recognizing the tension between “extra-record” evidence and a record-based standard of review).⁷

Supplementing the administrative record with outside information is somewhat distinct from supplementing the record “upon a showing that the administrative record is not complete.” Advanced Tech., 2010 WL 1976881, *4, 2010 Ct. Intl. Trade LEXIS at * 13. “Although record supplementation on these grounds is often viewed as one of the ‘exceptions' to the record rule ... it is described more accurately as ‘completing’ the record because the material sought to be included is only that which (allegedly) should have been a part of the record to begin with.” Id. at 2010 WL 1976881, **4–5, 2010 Ct. Intl. Trade LEXIS, *13–14.

“Where an agency presents a certified copy of the complete administrative record, as was done in this case, ‘the court assumes the agency properly designated the Administrative Record absent clear evidence to the contrary.’ ” Defenders of Wildlife, 24 CIT at 1119 (quoting Ammex, Inc. v. United States, 23 CIT 549, 549, 62 F.Supp.2d 1148 (1999)); see ITC's Certificate appended to the Administrative Record, Doc. No. 11, at 1. “In a motion to complete the administrative record, a party must do more than simply allege that the record is incomplete. Rather, a party must provide the Court with reasonable, non-speculative grounds to believe that materials considered in the decision-making process are not included in the record. The burden therefore rests on Plaintiffs to provide evidence that the appropriate decisionmakers either directly or indirectly considered the missing documents while making their decision.” Defenders of Wildlife, 24 CIT at 1119 (citations and quotations omitted). Nonetheless, “a document need not literally pass before the eyes of the final agency decision maker to be considered part of the administrative record.” Miami Nation of Ind., Inc. v. Babbitt, 979 F.Supp. 771, 777 (N.D.Ind.1996) (quoting Clairton Sportsmen's Club v. Pa. Turnpike Comm'n, 882 F.Supp. 455, 464 (W.D.Pa.1995)).

IVDISCUSSION

Plaintiff alleges that the administrative record is incomplete because the requested documents were all “before the Commission at the time it made its several determinations that Giorgio was not eligible for distributions” under the CDSOA and because the documents are all “relevant to Giorgio's claims that it was denied CDSOA distributions based solely on viewpoint-based speech, in violation of the First Amendment and Equal Protection Clause.” Plaintiff's Motion at 2–3. Plaintiff notes it is “not in this Motion seeking to supplement the record with additional documents that were not previously before the Commission.” Id. at 10.

Defendant responds that its inquiry for this particular case, to determine Giorgio's eligibility for distributions under the CDSOA, was extremely limited, necessitating consultation of “only a small number of documents, which included the public staff reports from the Commission's original investigations, the pages of Giorgio's questionnaire in the investigations reporting Giorgio's position on the petitions for Chile, China, and Indonesia, and the letters filed by Giorgio with the Commission during the distribution process for the Byrd Amendment,” and that “the court's review should be based on the record that the Commission relied upon in making its Byrd Amendment determination.” ITC's Opposition at 11 (capitalization modified), 14.

The administrative record provided by the ITC is incomplete because not all of the documents considered directly or indirectly by the ITC were included. In order for a motion to complete the administrative record to be granted, the movant must show that the documents requested were “considered, even indirectly” by the agency. Ammex, 23 CIT at 555. In order to determine what the agency considered, even indirectly, it is necessary to review what decision is being challenged. As pointed out by Plaintiff, under the CDSOA and in light of the Federal Circuit's decision in SKF, 556 F.3d 1337, Defendant draws too...