SCM Corp. v. United States

• Decision Date: 11 June 1979
• Docket Number: Court No. 77-4-00553.,C.R.D. 79-11
• Citation: 473 F. Supp. 791
• Parties: SCM CORPORATION, Plaintiff, v. UNITED STATES (Brother International Corporation, Party-In-Interest), Defendant.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

473 F. Supp. 791

SCM CORPORATION, Plaintiff, v. UNITED STATES (Brother International Corporation, Party-In-Interest), Defendant.

C.R.D. 79-11; Court No. 77-4-00553.

United States Customs Court.

June 11, 1979.

COPYRIGHT MATERIAL OMITTED

Frederick L. Ikenson, Washington, D. C., for plaintiff.

Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C. (David M. Cohen, Washington, D. C., Branch Director, Federal Programs Branch, Sheila N. Ziff, New York City, trial atty.), for defendant.

Tanaka, Walders & Ritger (H. William Tanaka, Lawrence R. Walders and Wesley K. Caine, Washington, D. C., of counsel), for party-in-interest.

RE, Chief Judge:

This is an American manufacturer's action brought by SCM Corporation SCM, a domestic typewriter manufacturer, under the provisions of 19 U.S.C. § 1516(c). Plaintiff, SCM, seeks to review the failure of the Secretary of the Treasury to assess dumping duties on certain Japanese typewriters under the terms of the Antidumping Act of 1921, as amended.

For dumping duties to be assessed, it is necessary that the Secretary of the Treasury determine that a class or kind of imported merchandise is being, or is likely to be, sold in the United States or elsewhere at less then fair value. In addition, the International Trade Commission must determine that an industry in this country is being, or is likely to be, injured, or is prevented from being established by reason of the importation of such merchandise at less than fair value. It is only when both of these determinations are made in the affirmative, i. e., less than fair value and injury, that dumping duties may be assessed. Thus, if the Secretary finds no sales at less than fair value, or if the International Trade Commission makes a negative injury determination, no dumping finding can be published and no dumping duties can be assessed. 19 U.S.C. § 160 et seq. ("Antidumping Act").

The history and underlying issues of this litigation are discussed in SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 450 F.Supp. 1178, 80 Cust.Ct. 226 (1978), in which this court decided that it had jurisdiction to review the negative injury determination of the International Trade Commission.

During the course of the litigation, plaintiff, by interrogatories, sought from the defendant, among other things, all documents and things in the files of the International Trade Commission and each Commissioner in investigation number AA1921-145. In response, defendant categorized and identified all of the documents and things that it claimed were in the files of the Commission or Commissioners at the time of the negative injury determination.

Defendant did not produce the documents requested, and plaintiff sought an order compelling discovery. Defendant filed a cross-motion for a protective order, and moved to be relieved from responding to plaintiff's interrogatories and motion to produce.

The court entered an order requiring that the Secretary of the International Trade Commission prepare and transmit to the Clerk of the United States Customs Court, the following:

(1) A certified copy of the transcript of proceedings, and all exhibits introduced before the Commission in its investigation numbered AA1921-145;

(2) Certified copies of all written submissions, questionnaires, reports and other documents which relate to investigation AA1921-145;

(3) All other things in the files of the Commission relating to that investigation.

The order further provided that the denial of defendant's cross-motion for a protective order was without prejudice, and was subject to renewal for the documents or things that were received by the Commission on a confidential basis, or that were otherwise privileged. SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 81 Cust.Ct. 159, C.R.D. 78-13 (1978).

In compliance with that order, copies of all documents, confidential and nonconfidential, were transmitted to the court. Based upon a claim of executive privilege asserted by the Honorable Joseph O. Parker, Chairman of the International Trade Commission, the defendant now moves for a protective order as to nine (9) documents. A formal affidavit executed by Chairman Parker was submitted and attached to defendant's brief.

When defendant, in response to plaintiff's discovery request, identified every document and thing in the files, it identified only one of the nine documents now claimed to be privileged, i. e., item No. 44, the "pros and cons" statement. Defendant contends that it has validly asserted privilege not only as to document No. 44, but also as to the other eight documents not previously identified.

The nine disputed documents listed by the defendant are described as follows:

No. 44 An undated four-page "pros and cons" statement prepared by staff for the use of the Commissioners in arriving at the Commission's determination with regard to Portable Electric Typewriters from Japan. This statement sets forth suggested criteria to be used as well as possible reasons for and against an affirmative injury determination. The document contains staff advice and alternative views and recommendations as to injury or likelihood of injury to the domestic industry;

No. 56 Twelve-page, hand-written draft of Document 44;

No. 58 An undated two-page draft opinion entitled "Statement of Reasons for Determination of Commissioner Minchew to Abstain" prepared by staff for the exclusive consideration of, and use by, Commissioner Minchew in arriving at his statement of reasons. The document contains advice, conclusions, deliberations, opinions, and recommendations;

No. 59 An undated one-page draft opinion entitled "Statement of Reasons for Abstension (sic) of Vice Chairman Minchew" prepared by staff for the exclusive consideration of, and use by, Commissioner Minchew in arriving at his statement of reasons.

The document contains advice, conclusions, deliberations, opinions, and recommendations;

No. 62 Four-page draft opinion, dated 6/16/75, entitled "Statement of Reasons for Negative Determination of Chairman Leonard, Commissioner Bedell," prepared by staff for the consideration of, and use by, the Commissioners in arriving at their statement of reasons. The document contains staff advice, conclusions, deliberations, opinions, and recommendations;

No. 63 Three pages of hand-written notes used as a basis for the development of Document 44. Like Documents 44 and 56, this contains staff advice and alternative views and recommendations as to injury or likelihood of injury to the domestic industry;

No. 68 An undated, four-page, second draft opinion entitled "Statement of Reasons for Negative Determination of Chairman Leonard and Commissioners Bedell and Parker" prepared by staff for the consideration of, and use by, the Commissioners in arriving at their statement of reasons, with hand-written modification made by, or at the direction, of individual Commissioners. The document contains staff advice, conclusions, deliberations, opinions, and recommendations, as well as tangible evidence of Commissioners' thought processes (in the case of hand-written modifications);

No. 77 A five-page draft opinion, dated 6/17/75, entitled "Statement of Reasons for the Affirmative Determination of Commissioner Ablondi" prepared by staff for the exclusive consideration of, and use by, Commissioner Ablondi in arriving at his statement of reasons. The document contains advice, conclusions, deliberations, opinions and recommendations;

No. 78 Five-page untitled draft opinion, dated 6/16/75, that supports an affirmative determination of injury in Portable Electric Typewriters from Japan. This document was prepared by staff for the exclusive consideration of, and use by, Commissioner Ablondi in arriving at his statement of reasons. This document contains advice, conclusions, deliberations, opinions, and recommendations.

Plaintiff's opposition to the defendant's motion for a protective order is based upon its contention that the claim of executive privilege has been waived by defendant's conduct, and, that, in any event, it has not been properly invoked. Plaintiff also maintains that the privilege against interagency advisory opinions is not absolute but qualified.

Plaintiff states that, in response to its discovery request, defendant identified only one of the nine documents now claimed to be privileged, item No. 44, the "pros and cons" statement. At that time, this document was not produced by the defendant on the ground that it was outside the scope of judicial review in these proceedings. Consequently, it is plaintiff's contention that, since the defendant based its refusal to produce item No. 44 solely upon the scope of judicial review, the defendant has waived its claim of privilege.

The plaintiff also contends that, when asked to identify and produce, the defendant's response did not identify the eight additional documents produced after the court entered its order requiring production of all documents and things in the files of the Commission and Commissioners. Plaintiff argues that the defendant has offered no explanation for its failure to produce except that the eight documents were recently located. Also as to these documents, therefore, plaintiff contends that the defendant's conduct is tantamount to a waiver of its claim of executive privilege.

Plaintiff submits an additional reason to deny the defendant's motion for a protective order. It asserts that the claim of executive privilege must be made by the "head" of the department or agency who must personally review the matter to determine whether the privilege should be invoked, and that the Chairman of the International Trade Commission is not the appropriate official to invoke the privilege for that agency.

Finally, plaintiff urges that the privilege which attaches to interagency advisory communications does not apply "to purely factual communications within or...