Save Domestic Oil, Inc. v. United States

Slip Op. 02 - 31

UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - - -x
SAVE DOMESTIC OIL, INC.,
:
Plaintiff,
:
v.
:

UNITED STATES, :

Defendant, :

-and- : Court No. 99-09-00558

API AD HOC FREE TRADE COMMITTEE; SAUDI :
ARABIAN OIL COMPANY; PETROLEOS de VEN-
EZUELA, S.A. and CITGO PETROLEUM COR- :
PORATION; PETROLEOS MEXICANOS, PMI CO-
MERCIO INTERNACIONAL S.A. de C.V. and :
PEMEX EXPLORACIÓN y PRODUCCIÓN; MOBIL
CORPORATION; EXXON CORPORATION; SHELL :
OIL COMPANY; TEXACO INC.; CHEVRON COR-
PORATION; and BP AMOCO, :

Intervenor-Defendants. :
- - - - - - - - - - - - - - - - - - - -x

Memorandum & Order

Dated: March 22, 2002

Wiley, Rein & Fielding (Charles Owen Verrill, Jr. and Tim-
othy 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.

AQUILINO, Judge: 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
Court No. 99-09-00558 Page 2

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 advo-
cating 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 dis-
qualification 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, disqualifi-
cation 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 respect-
fully 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 impar-
tially to adjudicate other claims against the United
States in this proceeding "might reasonably be ques-
tioned" by an informed, objective observer.

Disqualification from the captioned case is there-
fore required by law.
Court No. 99-09-00558 Page 3

I

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 con-

templation 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 un-

published, 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
Court No. 99-09-00558 Page 4

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 pro-

ceedings, 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 Inter-

national 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 command[1;]

(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 Inter-

national Trade, this court was constrained to file its petition

with the Supreme Court for relief from the second appellate panel's

unfounded order.

1
18 U.S.C. §401.
Court No. 99-09-00558 Page 5

That petition has been denied sub nom. United States

Court of Int'l Trade v. United States, 122 S.Ct. 930 (2002).

II

As recited above, Venezuela's motion to disqualify pur-

ports 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 follow-
ing 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 proceed-
ing. . . .

28 U.S.C. §455.

A

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

2
Intervenors' Motion to Disqualify, p. 6. The motion also
points out, id. at 7, that subsection 455(e) provides that "[n]o
. . . judge . . . shall accept from the parties to the proceeding
a waiver of any ground for disqualification enumerated in
subsection (b)."
Court No. 99-09-00558 Page 6

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 Iraq, Mexico, Saudi Arabia, and Venezuela, 64 Fed.

Reg. 44,480 (Aug. 16, 1999). And those parties and their respec-

tive 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 inter-

locutory order of remand to the ITA for some 259 days, counsel were

necessarily ordered to show cause for such inaction. Their re-

3
Intervenors' Motion to Disqualify, p. 7.
Court No. 99-09-00558 Page 7

sponse, 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 (as opposed to that court's

docket number 01-1091, which attached to defendant's prior,

unlawful, attempted appeal on the merits of CIT No. 99-09-00558).

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 con-

strained 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 de-

cision 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 pro-

4
Petition for a Writ of Mandamus to the United States Court
of International Trade in No. 99-09-00558, Judge Thomas J. Aqui-
lino, Jr., p. 2 (Aug. 17, 2001) (emphasis in original).
Court No. 99-09-00558 Page 8

ceedings." This unfounded intervention compelled its object to

petition the Supreme Court of the United States to set it aside --

in the interests of proper practice and orderly procedure. See

generally Petition for Writ of Certiorari, In re United States ex

rel. United States Court of International Trade (Nov. 1, 2001),

U.S. No. 01-684 (Nov. 8, 2001).

Considering Venezuela's instant motion in its most favor-

able light shows that certiorari petition to be at the core of its

present position under 28 U.S.C. §455(b). See supra and Inter-

venors' Motion to Disqualify, pp. 9-11. That is, the motion

recognizes the existence of Federal Rule of Appellate Procedure

21(b)(4) and the invitation/direction of the CAFC thereunder (if

not its own Rule 21(a)(5)) in concluding that this "Court's state-

ment to the Federal Circuit may not have created a disqualification

problem." Id. at 8. Rather, the motion points to the attempted

invocation of Supreme Court review pursuant to 28 U.S.C. §1254(1)

viz.

[b]y writ of certiorari granted upon the petition of any
party to any civil or criminal case, before or after
rendition of judgment or decree[,]

and argues therefrom that this court "has thus invoked the status

of a party by seeking review under [the foregoing provision], which

is available only to a 'party'". Id. at 10. The motion also

relies on the definition of "proceeding" found in 28 U.S.C.

§455(d)(1), which "includes pretrial, trial, appellate review, or

other stages of litigation".
Court No. 99-09-00558 Page 9

On its face, this definition is broad enough to encompass

the proceeding instigated by the government in the CAFC, and which

caused this court to become involved and thereafter the court of

appeals to become the object of the Supreme Court petition, but

that proceeding, now concluded, had no bearing on the merits of CIT

No. 99-09-00558. The only case Venezuela's motion considers

"instructive"5 on this issue is United States v. Craig, 875 F.Supp.

816 (S.D.Fla. 1994), a case involving an apparent disagreement

between judges in neighboring federal districts in Florida as to

who should and would preside over a criminal trial of some 30

defendants. When the judge to whom the case was assigned after it

was ordered transferred sided with the prosecution regarding the

changed venue, the defendants obtained a writ from the Court of

Appeals for the Eleventh Circuit prohibiting retransfer and moved

for that judge's removal from the restrained case on the ground

that he had violated the Circuit's rule governing responses to

mandamus petitions. The government then joined in that motion,

whereupon the chief judge of the transferee district court ordered

the case reassigned, but not on the basis of 28 U.S.C. §455(b),

rather subsection (a), supra. Compare 875 F.Supp. at 817 with id.

at 818. In short, that case is hardly apposite here. The rule

remains that, "[u]nlike §455(a), §455(b) requires an actual

interest or bias on the part of the judge"6, which is not alleged

5
Intervenors' Motion to Disqualify, p. 7.
6
Hoang v. Ummel, No. 01-3039, 2001 WL 1631716, at *2 (7th Cir.
Dec. 17, 2001).
Court No. 99-09-00558 Page 10

herein. See, e.g., Intervenors' Motion to Disqualify, p. 2 ("This

motion does not raise any claim against his Honor of actual bias or

prejudice").

B

Hence, the secondary prong of Venezuela's motion is the

more subjective standard of 28 U.S.C. §455(a), supra, to wit, that

a judge's "impartiality might reasonably be questioned." That

standard was considered and discussed at length in Liteky v. United

States, 510 U.S. 540 (1994), which affirmed the judgment of the

Court of Appeals for the Eleventh Circuit, if not its pristine

holding that "matters arising out of the course of judicial

proceedings are not a proper basis for recusal", 973 F.2d 910

(1992), citing its precedents United States v. Alabama, 828 F.2d

1532 (11th Cir. 1987), cert. denied, 487 U.S. 1210 (1988); In re

Corrugated Container Antitrust Litigation, 614 F.2d 958 (5th Cir.),

cert. denied, 449 U.S. 888 (1980); Davis v. Board of School Comm'rs

of Mobile County, 517 F.2d 1044 (5th Cir. 1975), cert. denied, 425

U.S. 944 (1976). The decision of the Supreme Court in Liteky is

that the "extrajudicial source" doctrine applies to section 455(a)

even though it concedes "there is not much doctrine to the

doctrine." 510 U.S. at 554. Stated another way, since

neither the presence of an extrajudicial source neces-
sarily establishes bias, nor the absence of an extra
judicial source necessarily precludes bias, it would be
better to speak of the existence of a significant (and
often determinative) "extrajudicial source" factor, than
of an "extrajudicial source" doctrine, in recusal juris-
prudence.
Court No. 99-09-00558 Page 11

. . . It is enough . . . to say the following: First,
judicial rulings alone almost never constitute a valid
basis for a bias or partiality motion. See United States
v. Grinnell Corp., 384 U.S.[563,] 583 [1966]. In and of
themselves (i.e., apart from surrounding comments or
accompanying opinion), they cannot possibly show reliance
upon an extrajudicial source; and can only in the rarest
circumstances evidence the degree of favoritism or
antagonism required . . . when no extrajudicial source is
involved. Almost invariably, they are proper grounds for
appeal, not for recusal. Second, opinions formed by the
judge on the basis of facts introduced or events occur-
ring in the course of the current proceedings, or of
prior proceedings, do not constitute a basis for a bias
or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment
impossible. Thus, judicial remarks during the course of
a trial that are critical or disapproving of, or even
hostile to, counsel, the parties, or their cases,
ordinarily do not support a bias or partiality challenge.
They may do so if they reveal an opinion that derives
from an extrajudicial source; and they will do so if they
reveal such a high degree of favoritism or antagonism as
to make fair judgment impossible. . . .

Id. at 554-55 (emphasis in original).

Venezuela's instant motion would disregard this disposi-

tive opinion of the Supreme Court, claiming that the

"extrajudicial source" factor has no relevance in the
present case . . . because the actions taken by his Honor
which warrant disqualification under §455(a) do not
consist of judicial rulings or judicial remarks made by
his Honor.

Intervenors' Motion to Disqualify, p. 13 n. 12. But, if this is

what the record developed to date at bar reflects, the movants'

focus must, by definition, be extrajudicial. As indicated above,

the motion takes the position that,

by personally filing a petition for a writ of certiorari
in the Supreme Court, his Honor has aligned himself
against a party here, namely, the United States. His
Court No. 99-09-00558 Page 12

Honor has also forcefully advocated in support of his
petition. Such personal involvement by his Honor to
maintain his Honor's initiation of a criminal contempt
inquiry against the United States and its counsel has,
unfortunately, created a circumstance in which his
Honor's impartiality "might reasonably be questioned"
within the meaning of Section 455(a)(emphasis added).
. . .

Id., p. 13.

Whatever the label, whether extra- or intrajudicial,

parties seeking recusal bear a heavy burden to substantiate their

claims. E.g., Baldwin Hardware Corp. v. Franksu Enterprise Corp.,

78 F.3d 550, 557 (Fed.Cir.) cert. denied sub nom. Klayman &

Assocs., P.C. v. Baldwin Hardware Corp., 519 U.S. 949 (1996).

Here, little is presented by Venezuela beyond that quoted verbatim

from its motion above -- in the context stated, namely, attempting

to assure proper practice and orderly procedure by all parties (and

by the courts, as well). Surely, such traditional and necessary

pursuit cannot, per se, be ground for grant of a motion to recuse.

As the Supreme Court has concluded:

. . . Not establishing bias or partiality, however, are
expressions of impatience, dissatisfaction, annoyance,
and even anger, that are within the bounds of what
imperfect men and women, even after having been confirmed
as federal judges, sometimes display. A judge's ordinary
efforts at courtroom administration - even a stern and
short tempered judge's ordinary efforts at courtroom
administration - remain immune.7

7
Liteky v. United States, 510 U.S. at 555-56 (emphasis in
original). Cf. United States v. Grinnell, 384 U.S. 563, 583
(1966):

. . . [B]ias and prejudice to be disqualifying must stem
from an extrajudicial source and result in an opinion on
the merits on some basis other than what the judge
learned from his participation in the case.
Court No. 99-09-00558 Page 13

III

Denial of Venezuela's motion as presented, however, does

not necessarily keep the above-captioned case on the best track to

final judgment. The focus of that motion pursuant to 28 U.S.C.

§455 is on the undersigned. The concern of this court, on the

other hand, remains with the parties, in particular the defendant,

which has not dispelled its apparent contempt -- in violation of 18

U.S.C. §401, supra. Indeed, the government's unacceptable stance

during the months preceding the court's order to show cause became

all the more patent once its counsel appeared in response thereto

and also precipitously dragged the matter before the CAFC, where

they misrepresented the salient facts and even argued, among other

things, that, if there were a basis for commencing a criminal-

contempt proceeding, initially it would be up to them to decide.

That implausible tack8 was sailed on to the Supreme Court, where,

8
The government's submissions to both the CAFC and Supreme
Court emphasized as controlling Young v. United States ex rel.
Vuitton et Fils, S.A., 481 U.S. 787 (1987). But that case simply
stands for the proposition that
counsel for a party that is the beneficiary of a court
order may not be appointed to undertake contempt
prosecutions for alleged violations of that order.

481 U.S. at 790. While that opinion goes on to aver that "courts
can reasonably expect that the public prosecutor will accept the
responsibility for prosecution", id. at 801, it also recognizes
that Federal Rule of Criminal Procedure 42(b) does not require such
a referral. That is,

the rationale for the appointment authority is necessity.
If the Judiciary were completely dependent on the Exec-
utive Branch to redress direct affronts to its authority,
it would be powerless to protect itself if that Branch
declined prosecution. . . .

Id. Especially when that branch itself has committed the affront!
Court No. 99-09-00558 Page 14

in opposing a writ of certiorari, the Solicitor General added

arguments to the effect (a) that the object of defendant's

extraordinary petition(s) to the CAFC was not really a party9, even

though personally named and served in that court's Miscellaneous

Docket No. 679 and ordered or invited to respond therein, and (b)

that the

CIT has neither sought nor received the authorization of
the Solicitor General to file a certiorari petition.

Brief for the United States in Opposition, p. 22 (Dec. 2001).

While accurate, not surprisingly, to have ended its formal opposi-

tion to this court's petition to the Supreme Court of the United

States on this last bit of legerdemain is perhaps as good an

indication as any of the continuing stance of the defendant herein.

To be sure, the petitioner cum respondent government did not

explain to either appellate court why it failed to comply with this

court's lawful interlocutory order of remand for some 259 days

after a stay had been duly denied.

Given the indifference of those courts in Washington,

however, any attempt to even discover the details of that derelic-

tion of proper practice and orderly procedure, let alone consider

possible remedies based thereon, seems at an end herein, which

circumstance thus simply serves as another reminder of just how

important lawyers are to the always-delicate judicial pursuit of

justice. The more they themselves become the partisans, the less

9
This particular contention, of course, runs contrary to that
of Intervenors' Motion to Disqualify, supra.
Court No. 99-09-00558 Page 15

they are genuinely and reliably officers of a court and that worthy

process. As was stated many years ago:

. . . Of all classes and professions, the lawyer is most
sacredly bound to uphold the laws. He is their sworn
servant; and for him, of all men in the world, to
repudiate and override the laws, to trample them under
foot and to ignore the very bands of society, argues
recreancy to his position and office, and sets a perni-
cious example to the insubordinate and dangerous elements
of the body politic. It manifests a want of fidelity to
the system of lawful government which he has sworn to
uphold and preserve. . . .

Ex parte Wall, 107 U.S. 265, 274 (1883). While the context of that

case was most severe, this opinion continues to have currency in

this country's capital. See, e.g., Johnston, Lawyer Discipline by

the Numbers, Legal Times, p. 18 (March 4, 2002).

Had this court been faced with deciding Liteky v. United

States, supra, it may well have subscribed to the concurring

opinion of four justices, 510 U.S. at 557 et seq., that their col-

leagues in the majority placed undue emphasis upon the source of

the challenged mindset in determining whether disqualification is

mandated by 28 U.S.C. §455(a)10 and that the

reach of §455(a) is broader than that of §455(b). One of
the distinct concerns addressed by §455(a) is that the
appearance of impartiality be assured whether or not the
alleged disqualifying circumstance is also addressed
under §455(b). In this respect, the statutory scheme
ought to be understood as extending §455(a) beyond the
scope of §455(b), and not confining §455(a) in large
part, as the Court would have it.

10
Liteky v. United States, 510 U.S. 540, 567 (1994) (Kennedy,
J., concurring in judgment). Cf. id. at 563, 566.
Court No. 99-09-00558 Page 16

510 U.S. at 567 (Kennedy, J., concurring in judgment). Whatever

the controlling views as to the purview of those statutory sec-

tions, each of the U.S. circuit courts of appeals applies abuse of

discretion as the standard of review for matters of recusal. See,

e.g., In re Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989),

cert. denied sub nom. ACW Airwall, Inc. v. U.S. Dist. Court for

Dist. of Puerto Rico, 493 U.S. 957 (1990); In re Drexel Burnham

Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988); Massachusetts

School of Law at Andover, Inc. v. American Bar Ass'n, 107 F.3d

1026, 1032-33 (3d Cir. 1997); United States v. DeTemple, 162 F.3d

279, 283 (4th Cir. 1998), cert. denied, 526 U.S. 1137 (1999); In re

Billedeaux, 972 F.2d 104, 105 (5th Cir. 1992); United States v.

Hartsel, 199 F.3d 812, 815 (6th Cir. 1999), cert. denied, 529 U.S.

1070 (2000); In re Hatcher, 150 F.3d 631, 635 (7th Cir. 1998); In

re Kansas Pub. Employees Retirement Sys., 85 F.3d 1353, 1358 (8th

Cir.), cert. denied, 519 U.S. 948 (1996); Leslie v. Grupo ICA, 198

F.3d 1152, 1160 (9th Cir. 1999); Mitchael v. Intracorp., Inc., 179

F.3d 847, 860 (10th Cir. 1999); United States v. Bailey, 175 F.3d

966, 968 (11th Cir. 1999); United States v. Pollard, 959 F.2d 1011,

1031 (D.C.Cir.), cert. denied, 506 U.S. 915 (1992); Baldwin

Hardware Corp. v. Franksu Enterprises Corp., 78 F.3d 550, 556 (Fed.

Cir.), cert. denied sub nom. Klayman & Assocs., P.C. v. Baldwin

Hardware Corp., 519 U.S. 949 (1996).

Exercise of any permissible discretion in this regard is

always governed by the interests of justice. In this case, there
Court No. 99-09-00558 Page 17

is no basis for confidence that whatever further decision on the

merits, either interlocutory or final, the facts and the law may

dictate would be carried out by the defendant, at least pending

further review upon proper and orderly appeal to higher authority.

This loss of confidence is exacerbated by the fact that the govern-

ment has the primary responsibility under the Trade Agreements Act

of 1979, as amended, to buffer the domestic and foreign competing

interests in international trade, with the judicial relief provided

in regard thereto essentially secondary and equitable.

Amelioration of this dilemma thus may not be possible in

the aftermath of the CAFC's interference. In fact, all that may

remain for the undersigned is to recall an adage derived from

astute observation of another attempt at orderly, civil society, to

wit, "Il est dangereux d'avoir raison sur un sujet pour lequel les

autorites établiés ont tort", and to invite the chief judge to

consider reassigning to another judge what remains of this case in

the Court of International Trade.

So ordered.

Dated: New York, New York
March 22, 2002

Judge