Nippon Steel Corp. v. U.S. Intern. Trade, SLIP-OP. 02-100.

• Decision Date: 30 August 2002
• Docket Number: No. Court No. 01-00103.,No. SLIP-OP. 02-100.,SLIP-OP. 02-100.,Court No. 01-00103.
• Citation: 239 F.Supp.2d 1367
• Parties: NIPPON STEEL CORP., Kawasaki Steel Corp., Thyssenkrupp Acciai Speciali Terni Sp.A and Acciai Speciali Terni (USA), Inc., Plaintiffs, v. UNITED STATES INTERNATIONAL TRADE COMMISSION Defendant, and Allegheny Ludlum Corp., AK Steel Corp., Butler Armco Independent Union, Zanesville Armco Independent Union, and United Steel Workers of America, AFL-CIO/CLC, Defendant-Intervenors.
• Court: U.S. Court of International Trade

239 F.Supp.2d 1367

NIPPON STEEL CORP., Kawasaki Steel Corp., Thyssenkrupp Acciai Speciali Terni Sp.A and Acciai Speciali Terni (USA), Inc., Plaintiffs, v. UNITED STATES INTERNATIONAL TRADE COMMISSION Defendant, and Allegheny Ludlum Corp., AK Steel Corp., Butler Armco Independent Union, Zanesville Armco Independent Union, and United Steel Workers of America, AFL-CIO/CLC, Defendant-Intervenors.

No. SLIP-OP. 02-100.

No. Court No. 01-00103.

United States Court of International Trade.

August 30, 2002.

Gibson, Dunn & Crutcher, LLP, Washington, DC (Joseph H. Price, Douglas R. Cox, Gracia M. Berg, Gregory C. Gerdes), for Plaintiff Nippon Steel Corporation.

Arent Fox Kintner Plotkin & Kahn, PLLC, Washington, DC, (Robert H. Huey, Matthew J. Clark, Nancy A. Noonan, Steven F. Hill, Timothy D. Osterhaus), for Plaintiff Kawaski Steel Corporation.

Hogan & Hartson, LLP, Washington, DC, (Lewis E. Leibowitz, Steven J. Routh, David G. Leitch, T. Clark Weymouth, David P. Kassebaum), for Plaintiffs ThyssenKrupp Acciai Speciali Terni Sp.A. and Acciai Speciali Terni (USA), Inc.

Lyn M. Schlitt, General Counsel, United States International Trade Commission; James M. Lyons, Deputy General Counsel, United States International Trade Commission (Gracemary Rizzo Roth-Roffy, Mark B. Rees), for the ITC.

Collier Shannon Scott, PLLC, Washington, DC, (Kathleen W. Cannon, Michael J. Coursey, Eric R. McClafferty, John M. Herrmann, Grace W. Kim, David A. Hartquist, R. Alan Luberda), for Defendant-Interveners Allegheny Ludlum Corporation, AK Steel Corporation, Butler Armco Independent Union, Zanesville Armco Independent Union, and the United Steelworkers of America, AFL-CIO/CLC.

BEFORE: RICHARD K. EATON, Judge.

OPINION AND ORDER

EATON, Judge.

This matter is before the court on crossmotions for summary judgment pursuant to USCIT R. 56, as to Counts One and Two ¹ of the complaints filed by Nippon Steel Corporation ("Nippon"), Kawasaki Steel Corporation, ThyssenKrupp Acciai Speciali Terni Sp.A and Acciai Speciali Terni (USA), Inc. (collectively "Plaintiffs"). On December 28, 2001, this court granted discovery with respect to the matters at issue in Counts One and Two by its opinion in Nippon Steel Corporation v. United States International Trade Commission, 2001 WL 1662083, 25 CIT-(CIT Dec. 28, 2001), familiarity with which is presumed.

The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. § 1516a(a)(2)(A)(i)(I) (2000).² Where a party challenges the findings of an antidumping review the court will hold unlawful "any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law...." 19 U.S.C. § 1516a(b)(1)(B)(i). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." USCIT R. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Here, there being no "genuine issue as to any material fact," summary judgment is appropriate. Oral argument was heard on August 14, 2002. For the reasons set forth below, the court finds that Dennis M. Devaney was validly appointed a commissioner of the United States International Trade Commission ("ITC") and that his vote with respect to the final results was lawfully cast, and grants summary judgment as to Counts One and Two in favor of the ITC.

BACKGROUND

By their complaints in this consolidated action, Plaintiffs challenge the ITC's affirmative material injury determination in the context of the five-year sunset review of imports of grain-oriented silicon electrical steel from Italy and Japan. See Grain-Oriented Silicon Elect. Steel from Italy and Japan, 66 Fed.Reg. 12,958 (Mar. 1, 2001); see also USITC Pub. No. 3396 (Feb.2001) ("Final Results"). Counts One and Two of these complaints claim that the vote by which the Final Results were reached was not in accordance with law because Dennis M. Devaney, one of those voting, had not validly been appointed an ITC commissioner.

The facts with respect to Mr. Devaney's disputed appointment can be briefly stated. The term of ITC Commissioner Thelma Askey expired on December 16, 2000, and she continued to serve as a commissioner pursuant to the ITC's holdover provision, 19 U.S.C. § 1330(b)(2), until such time as her successor was "appointed and qualified."³ The United States Senate, having commenced an intersession recess on December 15, 2000, reconvened at 12:01 p.m. on January 3, 2001. On January 2, 2001, Mr. Bob J. Nash, Assistant to the President and Director of Presidential Personnel for President William J. Clinton, prepared a memorandum ("Nash Memorandum") "in a form routinely used for such purposes"⁴ by which he conveyed to the Executive Clerk's Office the "President's approval of Mr. Devaney's appointment" (Def.'s Mem., Ex. 4 ("Nash Decl.") at ¶ 4) pursuant to the "Recess Appointments Clause" of the Constitution⁵ as a commissioner of the ITC. While Mr. Nash states that he "cannot recall ... whether the President conveyed his approval of the appointment directly to me orally or in writing" he does state that he "would not have prepared this memorandum had Mr. Devaney's recess appointment to the ITC not received the President's consideration and had I not been certain of the President's personal approval of the appointment."⁶ (Id.) The Nash Memorandum was received by the Executive Clerk's Office between 10:00 a.m. and 11:00 a.m. on January 3, 2001, and during the course of its processing, various White House personnel affixed their initials to it, together with the time of day either manually or by stamp. Based on the authorization provided by the Nash Memorandum, a "Recess Appointment Order" ⁷ "in a form routinely used by then President Clinton to make recess appointments" was prepared, and President Clinton's autopenned signature was affixed thereto. (Def.'s Resp. to Pis.' Third Set of Req. for Admis., Interrogs., and Prod, of Docs, at 4-5; see Pis.' Mem. Supp. Mot. Summ. J. ("Pis.' Mem.") App., Ex. 5 at 4-5.) All of this was completed prior to the Senate reconvening at 12:01 p.m. on January 3, 2001. The United States Senate commenced an intrasession recess on January 8, 2001, and reconvened on January 20, 2001. Ms. Askey participated in ITC business until at least January 12, 2001, and received the salary and other perquisites of an ITC commissioner until January 16, 2001. Mr. Devaney took the oath of office on January 16, 2001. On January 18, 2001, President Clinton signed Mr. Devaney's formal commission⁸ which was dated January 3, 2001. Mr. Devaney cast his vote with respect to the Final Results at a meeting of the commissioners of the ITC on February 23, 2001.

By its Final Results, the ITC sustained the existing antidumping duty orders on grain-oriented electrical silicon steel from Italy and Japan by finding that "revocation of the[se] antidumping duty orders ... would be likely to lead to continuation or recurrence of material injury to an industry in the United States...." See Final Results at 1. The ITC reached this finding by a three-to-three-i.e., evenly dividedvote and, thus, the antidumping duty orders remained in effect pursuant to 19 U.S.C. § 1677(11) (2000).⁹ The three persons voting in the affirmative were Mr. Stephen Koplan, Ms. Marcia Miller and Mr. Dennis M. Devaney.

With respect to Mr. Devaney's assumption of office and subsequent vote, Plaintiffs claim:

Mr. Devaney's purported recess appointment to the ITC on January 3, 2001 was invalid because (a) there was not a "vacancy" on the ITC to which he lawfully could have been appointed, and (b) the President did not sign the commission appointing Mr. Devaney to office during the recess of the Senate that ended on January 3, 2001. In light of this invalid appointment, Plaintiffs respectfully request that this Court find that Mr. Devaney's vote in the [Final Results ] was ultra vires and, accordingly, direct that the subject orders be revoked pursuant to the three-to-two vote of lawful ITC commissioners in favor of a negative determination.

(Pis.' Mem. at 1-2 (citation omitted); see also Nippon Compl. Count One at ¶¶ 18, 19; Count Two at ¶¶ 27, 28.)

The ITC disputes Plaintiffs' claims and asserts that Mr. Devaney was validly appointed:

On the morning of January 3, 2001, before the end of the intersession recess that preceded the 107^th Congress, former President Clinton appointed Dennis M. Devaney to the International Trade Commission ("ITC" or "Commission"), replacing Thelma Askey. Ms. Askey had been serving on the Commission in a "holdover" capacity since the expiration of her statutory term of office in December 2000. Commissioner Devaney's recess appointment was perfected by a recess appointment order, which was routinely used to make recess appointments, and executed prior to the end of the above-mentioned recess.

(Def.'s Mem. Supp. Cross-Mot. Summ. J. ("Def.'s Mem.") at 1.)

DISCUSSION

A. Mr. Devaney Was Validly Appointed

1. The Distinction Between an Appointment and a Commission

The court first turns to the question of whether Mr. Devaney was lawfully appointed pursuant to the Recess Appointments Clause. On this issue, Plaintiffs' primary argument is that a recess appointment requires the president to sign a commission to make it complete. Thus, Plaintiffs argue that, since Mr. Devaney's formal commission was not signed prior to 12:01 p.m. on January 3, 2001, his appointment was not completed during a recess of the Senate and thus he was not validly appointed.

At the outset it is worth noting that, although Article II, Section 2, Clause 3 of the Constitution is commonly called the Recess Appointments Clause, the word "appointment" is not found in the text of the clause...