Save Domestic Oil, Inc. v. U.S., Slip Op. 02-31.
| Citation | 193 F.Supp.2d 1372 |
| Decision Date | 22 March 2002 |
| Docket Number | Slip Op. 02-31.,Court No. 99-09-00558. |
| Parties | SAVE DOMESTIC OIL, INC., Plaintiff, v. UNITED STATES, Defendant, and Api Ad Hoc Free Trade Committee; Saudi Arabian Oil Company; Petroleos de Venezuela, S.A. and Citgo Petroleum Corporation; Petroleos Mexicanos, Pmi Comercio Internacional S.A. de C.V. and Pemex Exploración y Producción; Mobil Corporation; Exxon Corporation; Shell Oil Company; Texaco Inc.; Chevron Corporation; and Bp Amoco, Intervenor-Defendants. |
| Court | U.S. Court of International Trade |
Wiley, Rein & Fielding (Charles Owen Verrill, Jr. and Timothy C. Brightbill) for the plaintiff.
Shearman & Sterling (Thomas B. Wilner, Neil H. Koslowe, Perry S. Bechky and Rachel F. Bond) for intervenor-defendants Petroleos de Venezuela, S.A. and CITGO Petroleum Corporation.
This court's filing of a petition with the Supreme Court of the United States for a writ of certiorari to the Court of Appeals for the Federal Circuit ("CAFC") has been followed by Intervenors' Motion to Disqualify, filed herein by counsel for intervenor-defendants Petroleos de Venezuela, S.A. and CITGO Petroleum Corporation ("Venezuela"). Only the plaintiff has responded to the motion, which avers that, by
filing a pro se petition for a writ of certiorari, which seeks Supreme Court review of the mandamus order vacating a criminal contempt inquiry in this proceeding, his Honor may inadvertently but certainly irretrievably have become a party and a lawyer in this proceeding forcefully advocating positions adverse to those of Defendant the United States. In such circumstances, disqualification is required by 28 U.S.C. §§ 455(b)(5)(i), (ii). This motion does not raise any claim against his Honor of actual bias or prejudice.
Quite apart from Section 455(b), his Honor's disqualification is also required under Section 455(a). That Section mandates disqualification when a judge's impartiality "might reasonably be questioned" (emphasis added). Because the purpose of Section 455(a) is to preserve public confidence in the judicial system by avoiding even the appearance of impropriety, disqualification under it turns on facts that would create doubts about the judge's impartiality in the mind of the reasonable man-in-the-street, rather than the mind of the judge or one of the litigants. Where a judge personally intervenes in ongoing litigation to challenge and forcefully advocate before a higher court a position that is diametrically opposed to the interests of one of the parties to that litigation, the ability of the judge impartially to adjudicate other claims against that party in the litigation "might reasonably be questioned" by an informed, objective observer. Here, Intervenors respectfully submit that, because his Honor has filed a pro se petition for certiorari forcefully advocating a position on the initiation of a criminal contempt inquiry that is diametrically opposed to the interests of the United States, a party Defendant, his Honor's ability impartially to adjudicate other claims against the United States in this proceeding "might reasonably be questioned" by an informed, objective observer.
Disqualification from the captioned case is therefore required by law.
From the beginning, this case has been marred by the government. It dismissed the petition(s) of Save Domestic Oil, Inc. ("SDO") for relief under the Trade Agreements Act of 1979, as amended, without even a completely-proper preliminary analysis of the claims therein. When the court granted SDO's appeal from that summary dismissal to the extent of remand to the International Trade Administration, U.S. Department of Commerce ("ITA") for contemplation of commencement of an ordinary and regular preliminary investigation by that agency (and referral for investigation by the International Trade Commission), Save Domestic Oil, Inc. v. United States, 24 CIT ___, 116 F.Supp.2d 1324 (2000), or at least to explain its reasons fully in accordance with law for not doing so, the defendant noticed an unlawful appeal to the CAFC from that interlocutory remand order which was joined by Venezuela and other intervenor-defendants. Defendant's concomitant motion(s) for a stay pending its prosecution of that appeal were denied by this court sub nom. Save Domestic Oil, Inc. v. United States, 24 CIT ___, 122 F.Supp.2d 1375 (2000), and never granted by the CAFC, which ultimately came to conclude that it had no jurisdiction in the matter.
By the time that appellate decision slipped down unpublished, July 31, 2001, the defendant had been in apparent complete disregard, if not contempt, of this court's interlocutory order of remand for the better part of a year, whereupon counsel were ordered to explain that phenomenon. Initially, they refused, and then proceeded to petition the CAFC for writs of prohibition, one of which was granted sua sponte, followed soon thereafter by another order, unpublished per curiam, directing that the Court of International Trade cease and desist any criminal contempt proceedings, which was based upon a second CAFC panel's seeming conclusion that the mere intimation of such proceedings is an abuse of discretion.
Since (1) Congress has provided that the Court of International Trade
shall have the power to punish by fine or imprisonment, at its discretion, such contempt of its authority ... as—
... (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command1[;]
(2) the second CAFC panel seemingly disregarded the first panel's conclusion that their court had no jurisdiction in the matter; (3) government employees do not have license to completely disregard or willfully disobey court orders; (4) the CAFC should not be at liberty to preclude another court from attempting to ensure that its lawful orders are obeyed; and (5) CAFC appellate jurisdiction does not extend to obstruction of discovery in the Court of International Trade, this court was constrained to file its petition with the Supreme Court for relief from the second appellate panel's unfounded order.
That petition has been denied sub nom. United States Court of Int'l Trade v. United States, ___ U.S. ___, 122 S.Ct. 930, 151 L.Ed.2d 892 (2002).
As recited above, Venezuela's motion to disqualify purports to be based upon the following statutory provisions:
(a) Any ... judge ... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
* * * * * *
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such person:
(i) Is a party to the proceeding or an officer, director, or a trustee of a party;
(ii) Is acting as a lawyer in the proceeding....
28 U.S.C. § 455.
The motion's primary pincer would be subsection (b), which, it is said,
sets forth a simple rule: No person can be both judge and party, or judge and lawyer, in the same proceeding.
The disqualification provisions of 28 U.S.C. § 455-(b) operate automatically.2
Indeed. Hence, the only discussion herein can be about the facts, and whether or not they are within the statute's purview and meaning of "party," "[`same'] proceeding" and "lawyer."
If these provisions require "inexorable"3 enforcement, which this court accepts as the law, strictly construed they do not govern the phenomenon Venezuela attempts to rely on. Clearly, the court neither was, nor has become, either a party to or lawyer in the case bearing CIT No. 99-09-00558, the only parties to which are all named in the caption above, the gravamen of which is and has been judicial review of the ITA's Dismissal of Antidumping and Countervailing Duty Petitions: Certain Crude Petroleum Oil Products From Irag, Mexico, Saudi Arabia, and Venezuela, 64 Fed.Reg. 44,480 (Aug. 16, 1999). And those parties and their respective lawyers all strive to protect their particular substantive rights within the confines of that case and the law which governs its resolution.
The court's concern, on the other hand, is and has been the same as in all matters that come before it, namely, that the parties thereto engage in proper practice and orderly procedure. When it became apparent that the defendant herein had completely disregarded and/or willfully disobeyed the court's lawful interlocutory order of remand to the ITA for some 259 days, counsel were necessarily ordered to show cause for such inaction. Their response, in the main, was to obstruct attempted basic, relevant discovery on that issue, retreating in haste to the CAFC with a disingenuous claim that this court had
threatened to hold in criminal contempt all present and former officials involved in the government's decision to appeal the remand order.4
That is, the government fomented a new proceeding, which was given CAFC Miscellaneous Docket No. 679 (). That court's sua sponte order in No. 679 did contain an invitation within the meaning of Federal Rule of Appellate Procedure 21(b)(4) or a direction pursuant to CAFC Rule 21(a)(5) to respond to defendant's petition in chief, which this court was thus constrained to do. The Statement on Behalf of United States Court of International Trade (Aug. 30, 2001) explained at length the precise lie of the government's new proceeding and questioned the CAFC's jurisdiction to sustain it, in part given the first panel's decision on July 31, 2001 regarding lack of jurisdiction.
The second panel seemingly paid that lynchpin issue no heed in thereafter deciding to direct the "Court of International Trade ... to vacate its orders initiating criminal contempt proceedings." This unfounded intervention compelled its object to petition the Supreme Court of the United States to set it...
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