Slip Op. 01 - 94
UNITED STATES COURT OF INTERNATIONAL TRADE
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SAVE DOMESTIC OIL, INC.,
:
Plaintiff,
:
v.
:
UNITED STATES, : Court No. 99-09-00558
Defendant, :
-and- :
API AD HOC FREE TRADE COMMITTEE et :
alia,
:
Intervenor-Defendants.
:
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Memorandum & Order
Dated: August 6, 2001
Wiley, Rein & Fielding (Charles Owen Verrill, Jr. and Timothy
C. Brightbill) for the plaintiff.
Stuart E. Schiffer, Acting Assistant Attorney General; David
M. Cohen, Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice (A. David Lafer and Lucius B. Lau); and
Office of Chief Counsel for Import Administration, U.S. Department
of Commerce (Robert J. Heilferty), of counsel, for the defendant.
Dewey Ballantine LLP (Harry L. Clark, Michael H. Stein,
Bradford L. Ward and John W. Bohn) for intervenor-defendant API Ad
Hoc Free Trade Committee.
White & Case (Carolyn B. Lamm, Adams C. Lee and David L.
Elmont) for intervenor-defendant Saudi Arabian Oil Company.
Shearman & Sterling (Thomas B. Wilner, Jeffrey M. Winton and
Jeronimo Gomez del Campo) for intervenor-defendants Petroleos de
Venezuela, S.A. and CITGO Petroleum Corporation.
O'Melveny & Myers LLP (Gary N. Horlick and Michael A. Meyer)
for intervenor-defendants Petróleos Mexicanos, P.M.I. Comercio
Internacional S.A. de C.V., and PEMEX Exploración y Producción.
Court No. 99-09-00558 Page 2
King & Spalding (Joseph W. Dorn and Duane W. Layton) for
intervenor-defendant Texaco Inc.
Barnes, Richardson & Colburn (Robert E. Burke, Brian F. Walsh
and Robert F. Seely) for intervenor-defendant BP Amoco.
AQUILINO, Judge: On November 27, 2000, this court, in
denying defendant's motion(s) for leave to appeal from its inter-
locutory order of remand to the International Trade Administration,
U.S. Department of Commerce ("ITA"), per slip opinion 00-158, was
unable to conclude that the defendant [wa]s attempting to
proceed in good faith as opposed to in further delay of
final determination of plaintiff's prayer for relief if
not in contempt.
24 CIT , , 122 F.Supp.2d 1375, 1381. Indeed, on August 3,
2001, the defendant served and filed a Second Motion for Extension
of Time in which The Department of Commerce May Respond to the
Court's Order of September 19, 2000, appended to which is an order
of the U.S. Court of Appeals for the Federal Circuit dated July 31,
2001 and holding that the attempted appeal and concomitant motion
for a stay of this court's order by the defendant, as well as by
intervenor foreign and multinational oil companies, was baseless.
The interlocutory order in question issued pursuant to
slip opinion 00-120, 24 CIT , 116 F.Supp.2d 1324 (2000),
familiarity with which is presumed herein. It stated:
This case is hereby remanded to Commerce for
contemplation of commencement of a preliminary investiga-
tion by its ITA (and referral for such an investigation
by the [International Trade Commission] ITC) in accord-
ance with law . . .. The defendant may have 60 days from
Court No. 99-09-00558 Page 3
the date hereof for this purpose. To the extent, in the
exercise of its sound discretion during that time, the
agency determines to reconsider its analysis of any of
the threshold issues raised by the petition, including
the nature of SDO's domestic product vis-à-vis that of
other domestic producers and support for, and opposition
to, the petition on the part of domestic producers and
workers, the ITA may call upon the interested parties to
supplement the record, and also upon the U.S. Departments
of Labor and of Energy for relevant, publicly-available
data not yet part of the record. If the stated opposi-
tion of the API Ad Hoc Free Trade Committee is still
sought to be taken into account, the agency is hereby
directed to consider the facts and circumstances of the
business of each Committee company, standing on its own,
including most necessarily that particular company's
imports of crude petroleum oil from Iraq, México, Saudi
Arabia or Venezuela.
If the result of this remand is not initiation of
preliminary investigation(s) by the ITA (and the ITC),
the written reasons therefor are to be filed with the
court on or before the close of the aforesaid 60-day
period, whereupon the parties hereto may have 30 days to
serve and file comments thereon, with any replies thereto
due within 15 days thereafter.
24 CIT at , 116 F.Supp. at 1343. In other words, the initial
deadline set by slip opinion 00-120 was November 20, 2000.
The defendant did not comply with the foregoing order,
nor has it yet done so. Rather, its current motion (for further
delay -- until August 10, 2001), represents that,
[a]t this time, an extension . . . is warranted to allow
the current Assistant Secretary for Import Administration
an opportunity to adequately and faithfully respond to
the Court's remand order. During the original 60-day
period in which the Court instructed Commerce to conduct
its remand, that agency's staff undertook the analysis
contemplated in this Court's opinion and order. However,
the current Assistant Secretary was only nominated in
February 2001 and confirmed in May 2001. Thus, he has
not had an opportunity to review this Court's opinion and
Court No. 99-09-00558 Page 4
the staff's analysis in order to make an appropriate
determination. A brief extension of time of seven days
would allow the Assistant Secretary sufficient time to
render a reasoned and thoughtful decision.
If this representation genuinely reflects a change in the
administering authority within the meaning of the Trade Agreements
Act of 1979, as amended, in the aftermath of the 2000 presidential
election, defendant's motion can be granted. However, neither this
motion, nor anything else on the record of this case to date,
dispels the above-quoted inability of the court to conclude that
the defendant has not been dilatory and contemptuous. Indeed, this
court has long warned the ITA and its counsel that they are not at
liberty to ignore a remand order, "whether or not subject to
further judicial review." Smith Corona Corp. v. United States, 13
CIT 96, 100, 706 F.Supp. 908, 912 (1989), aff'd in pertinent part,
915 F.2d 683 (Fed.Cir. 1990).
Ergo, while the defendant may have until the close of
business on Friday, August 10, 2001, within which to respond to the
above-quoted, outstanding order of the court dated September 20,
20001, the defendant is also hereby directed to appear before the
undersigned in courtroom 3 at 11 a.m. on that day to show cause, if
there be any, why it should not be formally cited and sanctioned
for contempt of court, commencing on or about November 20, 2000.
1
The amount of time for comments on whatever the defendant
deigns to submit, and for replies thereto, shall remain as set
forth in that order.
Court No. 99-09-00558 Page 5
The Clerk forthwith shall enter on the docket this
memorandum and order and notify all parties to this case thereof
before the close of business today.
It is so ordered.
Dated: New York, New York
August 6, 2001
Judge
Slip Op. 01-94 Erratum
Save Domestic Oil, Inc. v. United States
Court No. 99-09-00558
"September 20," in the third line of the second full
paragraph on page 4 should be September 19,
Dated: New York, New York
August 7, 2001