USX Corp. v. US

• Decision Date: 03 June 1987
• Docket Number: Court No. 85-03-00325.
• Citation: 11 CIT 419,664 F. Supp. 519
• Parties: USX CORPORATION, f/k/a United States Steel Corporation, Plaintiff, v. The UNITED STATES and United States International Trade Commission, Defendants, and Propulsora Siderurgica, S.A.I.C., Defendant-Intervenor.
• Court: U.S. Court of International Trade

664 F. Supp. 519

11 CIT 419

USX CORPORATION, f/k/a United States Steel Corporation, Plaintiff, v. The UNITED STATES and United States International Trade Commission, Defendants and Propulsora Siderurgica, S.A.I.C., Defendant-Intervenor.

Court No. 85-03-00325.

United States Court of International Trade.

June 3, 1987.

USX Corp. (John J. Mangan, J. Michael Jarboe, Craig D. Mallick and Robin K. Capozzi), Pittsburgh, Pa., for plaintiff.

Lyn M. Schlitt, General Counsel, James A. Toupin, Asst. General Counsel and Jack M. Simmons, III, U.S. International Trade Com'n., Washington, D.C., for defendants.

OPINION AND ORDER

RESTANI, Judge.

Plaintiff moves for access to certain documents identified in List 3A and comprising part of the administrative record in this remanded final negative determination of the International Trade Commission (ITC). The ITC claims that these documents are privileged and seeks a protective order to keep the documents under seal.

The documents at issue are General Counsel memoranda (GCM), also referred to as legal issues memoranda, prepared by the Office of General Counsel for use by the ITC during the course of an investigation. In the past, such documents were routinely made publicly available following the termination of an investigation. More recently, however, the ITC determined that it would no longer waive its claims of privilege to GCM and directed the General Counsel to protect GCM from public disclosure.

Defendants acknowledge that GCM are part of the administrative record,¹ but, citing a portion of the legislation,² assert that "there is nothing in the statute or legislative history that remotely suggests any intent on the part of Congress to abrogate any appropriate privilege in documents on the record of the investigation." Defendants' Opposition to Plaintiff's Motion for Access to Privileged Documents Defendants' Opposition at 21. While Congress may not have "abrogated" privileges that might otherwise protect documents from disclosure, it is nevertheless possible that Congress has tempered certain privileges by specifically providing for disclosure of privileged documents under such terms and conditions as the court may order. See 19 U.S.C. § 1516a(b)(2)(B) (1982); 28 U.S.C. § 2635(b)(2) (1982). See also S.Rep. No. 249, 96th Cong., 1st Sess. 248 (1979), U.S. Code Cong. & Admin.News 1979, p. 633 and Star-Kist Foods v. United States, 8 CIT 305, 600 F.Supp. 212 (1984) (claim of absolute privilege for state secrets precluded by plain language of statute providing for disclosure under CIT court order) (citing Ceramica Regiomontana, S.A. v. United States, 4 CIT 168 (1982) Available on WESTLAW, DCT database). Thus, "the proper assertion of privilege is but one factor, albeit a strong factor, for the Court to consider in balancing the conflicting interests involved in disclosure of such documents." Star-Kist, 8 CIT at 308, 600 F.Supp. at 216.

Defendants claim that the three GCM at issue are protected by governmental deliberative privilege as well as attorney work product privilege. The deliberative process privilege protects "governmental communications containing advisory opinions, recommendations and deliberations comprising part of the process by which governmental decisions are formulated." United States Steel Corp. v. United States, 6 CIT 285, 286, 578 F.Supp. 418, 419 (1983). This privilege has often been applied to "pro and con" statements prepared by the ITC's staff. Melamine Chemicals v. United States, 1 CIT 65 (1980), rev'd on other grounds, 732 F.2d 924 (Fed.Cir.1984) (reversing subsequent decision on the merits at 5 CIT 116, 561 F.Supp. 458 (1983)).

In order for documents to be subject to the deliberative process privilege they must be both pre-decisional and deliberative. United States Steel, 6 CIT at 286, 578 F.Supp. at 420. While documents may be pre-decisional and deliberative when originated, they will not be entitled to any deliberative privilege if they are applied by the decisionmakers — as "secret law" — or otherwise expressly adopted or incorporated by reference into the final decision. 6 CIT 286-87, 578 F.Supp. at 420. In addition, factual material contained in deliberative documents also falls outside of the privilege, to the extent that it is severable. Id.

The GCM at issue were all prepared by the General Counsel's office to aid the ITC in carrying out this court's remand order and contain "legal analysis and advice, opinions and recommendations." Declaration of Gracia M. Berg at paragraphs 14-17. The court has viewed in camera the specific GCM at issue and is confident that they were written as pre-decisional and deliberative documents.³ They do not represent the agency's established policy, procedure or precedent upon which the Commissioners might rely in making their determinations, nor do they contain factual material not available elsewhere.

Nevertheless the ITC could have expressly adopted the documents, incorporated them by reference, or otherwise waived any applicable privilege. Two of the documents, GC-K-049 and GC-K-050, were referenced in the appendix to the ITC determination on remand.⁴ Such passing reference merely acknowledged the existence of the documents and did not constitute their express adoption as authority or support for the Commission's determination. A portion of the third document, GC-K-062, however, was read aloud and discussed by one of the Commissioners in a public meeting. That passage is contained in the tape recording included in the public record, was severed and reproduced as a separate document in the public record and is not the subject of any proposed protective order. Similarly, since the court has confirmed defendant's assertion that the documents contain no facts that are not available elsewhere in the record, there is no need to engage in a separate analysis of the status of such material.

Having found that the government's deliberative privilege applies to the three documents at issue,⁵ to the extent that their content has not already been made available elsewhere in the public record, the court must balance the conflicting interests.⁶ In order to gain access to privileged documents, plaintiff "must demonstrate clearly and persuasively that the need for disclosure outweighs the harm that could result from disclosure." Star-Kist, 8 CIT at 309, 600 F.Supp. at 217. See SCM Corp. v. United States, 82 Cust.Ct. 351, 359 (1979). An actual showing of need must be made.⁷

Plaintiff argues that the description of the documents offered by the ITC "presents the clearest statement as to the specific need for access to these materials." Plaintiff's Memorandum at 15. Plaintiff cites, in part, the following declaration by an attorney in ITC's office of general counsel: "each of the three memoranda was drafted to aid the Commission in carrying out the remand order of the Court and in anticipation of further legal proceedings by USX challenging the Commission's determination on the remanded investigations," Berg Declaration at paragraph 14, as well as defendants' statement that the documents "discuss what steps the Commission might take to prevail in further proceedings." Defendants' Opposition at 9. Plaintiff concludes that

if the agency's remand investigation was, in fact, subject to such a negative predisposition, the resulting Remand Determination would not be in accordance with applicable law and would be in blatant disregard to the directives of the Court's Remand Order of February 9, 1987. Moreover, based upon the Commission's own statements, it is likely that the List 3A documents would contain the only indication in the record of any such predisposition. A more compelling need for access cannot be imagined.

Plaintiff's Memorandum at 16.

Before focusing on the documents sought to determine if they contain evidence of an improper predisposition, the court necessarily must consider the question of what is an improper predisposition. When a court remands for reconsideration it avoids resolving the ultimate question in derogation of the agency's statutory duty. See Federal Communications Commission v. Pottsville Broadcasting, 309 U.S. 134, 60 S.Ct. 437, 84 L.Ed. 656 (1940) (writ of mandamus quashed because it restricted the agency from reconsidering a licensing determination in accordance with statutory standards); Federal Power Commission v. Idaho Power Co., 344 U.S. 17, 73 S.Ct. 85, 97 L.Ed. 15 (1952) (reviewing court erred in directing the issuance of a license rather than simply declaring the error of law which occurred). Rather, as these cases require, the reconsideration direction compels the statutorily designated decision-maker to reconsider the matter in the light of its statutory mandate. "According to this `principle' the agency's original initiative is reactivated free of the accretions of any private interests, expectations or equities." L. Jaffe, Judicial Control of Administrative Action 714 (1965). Thus, the agency must consider the matter anew. Neither its prior conclusion nor the interest of the party prevailing upon judicial review governs the outcome. Although, "... `the devil himself knoweth not the mind of man,' and a modern reviewing court is not much better equipped to lay bare unexposed mental processes," N.L.R.B. v. Donnelly Garment Co., 330 U.S. 219, 229, 67 S.Ct. 756, 761, 91 L.Ed. 854 (1947) (quoting "an early English judge"), implicit in these decisions is the concept that the reviewing court may set aside a determination if it finds the administrative decision-maker prematurely committed in either of the two ways described. As indicated, as a practical matter the burden of showing such unwillingness to reconsider is a difficult one. An administrative body which in connection with its adjudicative or investigative functions has already expressed a view on an issue, is not forbidden from addressing the issue again. Federal Trade Commission v. Cement Institute, 333 U.S. 683, 702-703, 68...