Saha Thai Steel Pipe Co., Ltd. v. US

• Decision Date: 02 April 1987
• Docket Number: Court No. 86-04-00482.
• Parties: SAHA THAI STEEL PIPE CO., LTD. and Thai Steel Pipe Industry Co., Ltd., Plaintiffs, v. The UNITED STATES, Defendant, Atcor, Inc., Sawhill Division of Cyclops Corp., and Wheatland Tube Corp., Intervenors.
• Court: U.S. Court of International Trade

661 F. Supp. 1198

11 CIT 257

SAHA THAI STEEL PIPE CO., LTD. and Thai Steel Pipe Industry Co., Ltd., Plaintiffs, v. The UNITED STATES, Defendant, Atcor, Inc., Sawhill Division of Cyclops Corp., and Wheatland Tube Corp., Intervenors.

Court No. 86-04-00482.

United States Court of International Trade.

April 2, 1987.

Willkie Farr & Gallagher, William H. Barringer and Arthur J. Lafave, III, Washington, D.C., for plaintiffs.

Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, A. David Lafer, Civil Div., U.S. Dept. of Justice, Washington, D.C., for defendant.

OPINION

RESTANI, Judge:

Plaintiffs initiated this action to challenge certain aspects of the final affirmative antidumping duty determination by the Department of Commerce (Commerce) in Certain Welded Carbon Steel Pipes and Tubes from Thailand.¹ In their complaint plaintiffs allege, inter alia, that impermissible political considerations influenced Commerce's decision to calculate dumping margins based on the "best information available." See 19 U.S.C. § 1677e(b) (1982). Plaintiffs contend that the data they submitted to Commerce was rejected in order to artificially increase the size of dumping margins. This course of action was followed, plaintiffs argue, in order to force Thai Steel exporters to sign voluntary restraint agreements (VRA) pursuant to the President's steel import restraint and import monitoring program.²

In order to gather further support for these claims, plaintiffs served defendant with numerous interrogatories requesting admissions or denials that political factors improperly influenced Commerce's decision-making. Interrogatories 4-9, 34-35. Other interrogatories asked defendant to enumerate any contacts between Commerce officials and administrative or congressional figures who took an interest in the action. Interrogatories 1-3, 10-33, 36-39.

In response to these requests, defendant raised the following blanket objection:

Defendant objects to this discovery request upon the ground that this action is confined to a review of the record made by the administering authority and filed with the court; and that, accordingly, discovery does not lie, no order permitting discovery having been entered and no predicate for such an order having been established. See 28 U.S.C. § 2640(b); 19 U.S.C. § 1516a(b). See also BarBea Truck Leasing Co., Inc. v. United States, 4 CIT 159, 162 (1982); Atlantic Sugar, Ltd. v. United States, 85 Cust.Ct. 131, 80-16 (1980).

Plaintiffs responded to this objection by filing their Motion to Compel Discovery and for an Award of Expenses; defendant reciprocated by filing a Cross-Motion for a Protective Order.

Initially, the court must decide whether certain objections raised in defendant's motion for a protective order have been waived. Defendant's motion for a protective order argues that plaintiffs' interrogatories are inappropriate because they seek to probe the mental processes of administrative decision-makers and to have Commerce officials clarify their position beyond the statements contained in the challenged determination. Defendant's motion also alleges that plaintiffs have not made a sufficient showing of bad faith to proceed with discovery regarding improper political influence, and that plaintiffs have not shown a reasonable basis to believe that the administrative record is incomplete.

Plaintiffs argue that all of these objections have been waived because they were not included in defendant's answer to the interrogatories. The federal courts have stated that objections to interrogatories must be specific and supported by a detailed explanation of why the interrogatories are objectionable. See, e.g., United States v. NYSCO Laboratories, Inc., 26 F.R.D. 159, 161 (E.D.N.Y.1960). In some cases, evasive or incomplete answers have been held to constitute the legal equivalent of an absolute failure to reply. See Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 616-17 (5th Cir.1977), cert. denied, 435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978). Furthermore, the failure to reply in a timely manner may result in a waiver of the right to object. Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir.1981) (privilege against self-incrimination was waived where not timely asserted in response to interrogatories).

Although a more explicit response to plaintiffs' interrogatories would have comported better with the elusive spirit of mutual cooperation implicit in the discovery rules, the court does not find that defendant is barred from raising its objections. The strict rules advocated by plaintiff turn on two basic policy considerations: first, that vague blanket objections are improper because they force opponents to rebut all conceivable objections in their responsive motions to compel discovery; and second, that the court should not be burdened with the task of sifting through endless interrogatories in order to ascertain which ones fall within a blanket objection. See Shenker v. Sportelli, 83 F.R.D. 365, 366 & n. 2 (E.D.Pa.1979); NYSCO, 26 F.R.D. at 161. In practice, courts have not applied the waiver rules strictly where these policy concerns were not offended or other considerations intervened. For example, in Shenker, the court did not bar defendant's objections, but allowed the plaintiff to file a supplementary memorandum after defendant's objections had been clarified. Shenker, 83 F.R.D. at 367. In other cases courts have decided to consider blanket objections to interrogatories solely for reasons of "expediency." See NYSCO, 26 F.R.D. at 161. In this case, as in Shenker, the parties have been given a complete opportunity to develop their arguments.³ Moreover, the cases cited in defendant's blanket answer refer, at least indirectly, to the objections ultimately raised in defendant's cross-motion.⁴ Under these circumstances defendant's later objections can be viewed as merely clarifying grounds previously stated in its response to plaintiffs' interrogatories. See Trabon Eng'g Corp. v. Eaton Mfg. Co., 37 F.R.D. 51, 54 (N.D. Ohio 1964) (court would consider objections filed after answer insofar as they elaborated on grounds previously advanced). The court therefore concludes that the objections presented in defendant's cross-motion were not waived.⁵

Allegations of Impermissible Political Influence

In actions to challenge Commerce's calculation of dumping margins, the scope of judicial review is normally confined to information contained in the administrative record. Atlantic Sugar, 85 Cust.Ct. at 131. Materials outside the administrative record may be discovered, however, where the party requesting discovery makes a strong showing of bad faith or improper behavior on the part of the officials who made the determination. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971); BarBea Truck Leasing, 4 CIT at 162. The parties agree that these cases set forth the governing legal standard on this issue, but they disagree about whether plaintiffs have made the requisite showing.

Plaintiffs contend that improper political influence can be inferred from the following facts. Commerce officials are responsible for determining dumping margins and for administering the VRA program. During and shortly after the investigation, Commerce officials publicly stated that the antidumping and countervailing duty laws might be used to stem the tide of imports from countries which had not signed VRA agreements with the U.S. government. See "TASI/AISI/WCMI Meeting Addresses Import Steel Quotas," Port of Houston Magazine, Apr. 5, 1985, at 11. "Steel VRA Circumvention Stirs Commerce Department," American Metal Market, Feb. 21, 1986, at 1, col. 2. Two weeks after the final determination contested here, the Deputy Assistant Secretary for Import Administration sent a letter to the governments of VRA countries in which he warned:

If the voluntary steel arrangements' objectives are threatened, the United States Government is prepared to take administrative measures including ... the unfair trade laws to ensure that their objectives are met.⁶

Plaintiffs argue that these pronouncements are particularly meaningful when viewed from the standpoint of Thai steel producers. In a previous countervailing duty investigation involving Thai steel exports, Commerce found subsidies amounting to less than 2 percent ad valorem. Certain Circular Welded Carbon Steel Pipes and Tubes from Thailand, 50 Fed. Reg. 32,751 (August 14, 1985). Plaintiffs contend that since the subsidy margins were relatively low in that case, the only way Commerce could effectively control Thai imports would be by artificially inflating dumping margins in the instant case.⁷ Furthermore, plaintiffs contend that Commerce has a special incentive to pursue exporters, such as plaintiffs, who import steel from VRA countries and transform it into products for exportation. This type of arrangement allows VRA signers to circumvent their agreements by exporting to countries such as Thailand. The only way for Commerce to control this activity, plaintiffs argue, is to insure that countries such as Thailand receive unfavorable results in proceedings before Commerce and the International Trade Commission.

The court is sensitive to the problems parties face in gathering specific proof of unlawful political suasion. Such evidence, after all, is seldom highlighted on dog-earred pages of the administrative record. Nevertheless, the court concludes that plaintiffs have not made the strong showing of political influence required for additional discovery rights. Courts have uniformly recognized that in all administrative action, there is a presumption of good faith on the part of the government.⁸ United States v. Roses, Inc., 706 F.2d 1563, 1566 (Fed.Cir.1983). In order to overcome this presumption, the party moving to compel discovery "must show specific facts to indicate that the challenged action was reached...